<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 4, 1997
Registration No. 33-xxxxx
================================================================================
SECURITIES AND EXCHANGE COMMISSION
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
---------------------------
AMERAC ENERGY CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 75-2181442
(STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER
OF INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
1201 LOUISIANA, SUITE 3350
HOUSTON, TEXAS 77002
(713) 308-5250
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING
AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
-----------------------
RICHARD B. HALLETT
VICE PRESIDENT, CHIEF FINANCIAL OFFICER AND SECRETARY
AMERAC ENERGY CORPORATION
1201 LOUISIANA, SUITE 3350
HOUSTON, TX 77002
(713) 308-5250
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
-----------------------
COPIES OF CORRESPONDENCE TO:
CANTEY & HANGER, L.L.P.
801 CHERRY STREET, SUITE 2100
FORT WORTH, TEXAS 76102
(817) 877-2883
ATTN: DEAN A. TETIRICK
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to
time after this Registration Statement becomes effective as determined by
market conditions.
If the only securities being registered on this Form are being offered pursuant
to dividend or interest reinvestment plans, please check the
following box. [ ]
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following
box. [x]
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- ---------------------------------------------------------------------------------------------------------------------------
Title of Each Class of Amount to Proposed Maximum Proposed Maximum Amount of
Securities to be Registered be Registered Offering Price per Share(1) Aggregate Offering Price Registration Fee
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock
$0.05 Par Value (1) 1,677,459 shares $6.25 $10,484,118 $3,177
Common Stock
$0.05 Par Value (2) 154,175 shares $5.76 $ 888,048 $ 270
</TABLE>
________________________________
(1) Outstanding shares to be sold from time to time by selling shareholders;
proposed offering price estimated solely for purposes of calculating the
registration fee pursuant to Rule 457(c) on the basis of the average of the
high and low prices of $6.25 on the American Stock Exchange on April 3,
1997.
(2) Shares that may be issued upon the exercise of warrants expiring November
18, 1999 and that may thereafter be resold from time to time by selling
shareholders; proposed offering price estimated solely for the purposes of
calculating the registration fee pursuant to Rule 457(g) on the basis of
the exercise price of the warrants. The Registration Statement also covers
such additional shares and other securities as may be issuable upon
exercise of the warrants as a result of the antidilution provisions
thereof.
The Registrant hereby further amends this Registration Statement on such
date or dates as may be necessary to delay its effective date until the
Registrant shall file a further amendment which specifically states that this
Registration Statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933, as amended, or until this
Registration Statement shall become effective on such date as the Securities and
Exchange Commission, acting pursuant to said Section 8(a), may determine.
<PAGE>
PROSPECTUS
- -----------
SUBJECT TO COMPLETION DATED APRIL 4, 1997
AMERAC ENERGY CORPORATION
1,831,634 SHARES OF COMMON STOCK
This Prospectus relates to (i) 1,677,459 shares of Amerac Energy
Corporation (the "Company") common stock, $0.05 par value ("Common Stock"), that
may be offered from time to time by the holders thereof ("Selling
Shareholders"), and (ii) 154,175 shares of Common Stock that may be issued under
warrants presently exercisable for $5.76 per share and expiring November 18,
1999 ("Warrants") issued in connection with a private placement of Common Stock
by the Company in November 1996 and pursuant to an Exploitation Agreement dated
effective as of January 1, 1997 and that may thereafter be sold by the holders
thereof. The Company will receive proceeds from the issuance of Common Stock
upon exercise of the Warrants, but no part of the proceeds of sales of Common
Stock sold by the holders thereof. See "Selling Shareholders." The expenses
incurred in connection with this offering are expected to be approximately
$54,000 and will be paid by the Company, other than commissions and discounts of
underwriters, dealers or agents, which will be paid by the Selling Shareholders.
The Selling Shareholders may sell all or a portion of the shares of Common
Stock offered by this Prospectus from time to time (i) on the American Stock
Exchange or the Boston Stock Exchange at prices prevailing at the time of sale,
(ii) otherwise than on the American Stock Exchange or the Boston Stock Exchange
at market prices prevailing at the time of sale or at negotiated prices, or
(iii) by a combination of the foregoing methods. In addition, a Selling
Shareholder may deliver shares of Common Stock offered by this Prospectus from
time to time to cover short sales made by such Selling Shareholder. The Warrants
have not been and are not being registered for resale and will not be listed on
or sold through the American Stock Exchange or the Boston Stock Exchange. The
Selling Shareholders and any broker, dealer or other agent executing sell orders
on behalf of the Selling Shareholders may be deemed to be "underwriters" within
the meaning of the Securities Act of 1933, as amended, in which event
commissions received by the broker, dealer or agent may be deemed to be
underwriting commissions under such act.
The Common Stock currently trades on the American Stock Exchange and the
Boston Stock Exchange under the symbol "AMC". On April 3, 1997, the last
reported sale price of the Common Stock on the American Stock Exchange was
$6.25.
SEE "RISK FACTORS" ON PAGE 3 FOR CERTAIN FACTORS RELEVANT TO AN INVESTMENT
IN THE COMMON STOCK.
----------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS
A CRIMINAL OFFENSE.
---------------
THE DATE OF THIS PROSPECTUS IS APRIL 4, 1997
<PAGE>
AVAILABLE INFORMATION
The Company has filed with the Securities and Exchange Commission (the
"Commission") a Registration Statement on Form S-3 under the Securities Act of
1933, as amended (the "Securities Act"), with respect to the securities offered
hereby. As permitted by the rules and regulations of the Commission, this
Prospectus omits certain information pertaining to the securities offered
hereby. Reference is made to the Registration Statement, including the exhibits
filed as part thereof, and each statement contained herein is qualified in its
entirety by such reference.
The Company is subject to the information requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith, files reports, proxy and information statements and other information
with the Commission. The reports, proxy and information statements, the
Registration Statement and exhibits thereto, and other information filed by the
Company with the Commission can be inspected and copied at the Public Reference
Section of the Commission at Room 1024, Judiciary Plaza, 450 Fifth Street, NW,
Washington, DC 20549, and at the regional offices of the Commission located at
13th floor, 7 World Trade Center, New York, New York 10048, and at 500 West
Madison Street, Suite 1400, Chicago, Illinois 60661-2511. Copies of the material
can be obtained from the Public Reference Section of the Commission at Room
1024, Judiciary Plaza, 450 Fifth Street, NW, Washington, DC 20549 at prescribed
rates. In addition, copies of the material can be obtained from the Web site
maintained by the Commission at http://www.sec.gov. The Company's Common Stock
is listed on the American Stock Exchange and the Boston Stock Exchange under
the symbol "AMC". The reports, proxy statements and other information referred
to above may also be inspected at the American Stock Exchange, 86 Trinity Place,
New York, New York 10006 and at the Boston Stock Exchange, One Boston Place,
Boston, Massachusetts 02108.
The Company furnishes its stockholders with annual reports containing
financial statements audited by its independent auditors and with quarterly
reports containing unaudited summary financial information for each of the first
three quarters of each fiscal year.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
There are incorporated herein by reference the following documents
heretofore filed by the Company with the Commission:
(a) The Company's Annual Report on Form 10-KSB for the year ended December
31, 1996; and
(b) The description of the Common Stock set forth in the registration
statement on Form 8-A, filed with the Commission on February 27, 1997, including
any amendment or report filed for the purpose of updating the description.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of this Prospectus and prior to
the termination of the offering herein described shall be deemed to be
incorporated by reference into this Prospectus.
Any statement contained in a document all or a portion of which is
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for purposes of the Registration Statement and this
Prospectus to the extent that a statement contained in the Registration
Statement, this Prospectus or any other subsequently filed document that is also
incorporated by reference herein or in any accompanying prospectus supplement,
if any, modifies or supersedes that statement. Any statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
2
<PAGE>
The Company hereby undertakes to provide without charge to each person,
including any beneficial owner, to whom this Prospectus is delivered, upon
written or oral request of that person, a copy of any document incorporated
herein by reference (other than exhibits to those documents unless the exhibits
are specifically incorporated by reference into the documents that this
Prospectus incorporates by reference). Requests should be directed to Mr.
Richard B. Hallett, Vice President, Chief Financial Officer and Secretary,
Amerac Energy Corporation, 1201 Louisiana, Suite 3350, Houston, Texas 77002.
RISK FACTORS
Prospective purchasers of the Common Stock should carefully consider the
risk factors set forth below, as well as the other information contained in this
Prospectus.
VOLATILITY OF OIL AND GAS PRICES. The Company's revenue and profitability
are substantially dependent upon prevailing prices for
oil, gas and natural gas liquids, which are dependent upon numerous external
factors such as various economic, political and regulatory developments and
competition from other sources of energy. The volatile nature of the energy
markets makes it particularly difficult to estimate future prices of oil and
natural gas. Prices of oil and natural gas are subject to wide fluctuations and
there can be no assurance that decreases in such prices will not occur. A
substantial decline in oil and natural gas prices could have a material adverse
effect on the Company's financial position and results of operations.
UNCERTAINTY OF ESTIMATES OF OIL AND GAS RESERVES. Estimating quantities of
reserves and future net cash flows is not an exact science. There are numerous
uncertainties inherent in estimating quantities of proved oil and gas reserves.
Reserve reports rely upon various assumptions, including those prescribed by the
Commission, such as future oil and gas prices, drilling and operating expenses,
capital expenditures, taxes and availability of funds. The process of estimating
oil and gas reserves is complex, requiring significant decisions and assumptions
in the evaluation of available geological, engineering and economic data for
each reservoir. As a result, any such estimate is inherently an imprecise
estimation of reserve quantities and estimated future net revenue therefrom.
Actual future production, revenue, taxes, development expenditures, operating
expenses and quantities of recoverable oil and gas reserves will vary from those
assumed in the estimate. Any significant variance from the assumptions could
materially affect the quantity and value of the Company's reserves as compared
to the estimates set forth in reserve reports. In addition, these reserves may
be subject to downward or upward revision, based upon production history,
results of future exploration and development, prevailing oil and gas prices and
other factors.
NEED FOR ACQUISITION AND DEVELOPMENT OF ADDITIONAL RESERVES. The Company's
future success depends upon its ability to find, develop or acquire additional
oil and gas reserves that are economically recoverable. There can be no
assurance that the Company will be able to find, acquire or develop such
properties or develop additional reserves. Except to the extent that the Company
acquires additional properties containing proved reserves or conducts successful
development and exploitation activities on properties it currently owns, the
Company's proved reserves will decline. The Company considers oil and gas
property acquisitions of various sizes. Some of the acquisitions are of
substantial size relative to the Company's current asset base. The terms of any
future acquisition may involve issuance of a significant number of shares of the
Common Stock as well as cash. Under the rules and regulations of the American
Stock Exchange, any transaction that would require the issuance of more than
twenty percent of the outstanding shares of Common Stock at the time the
transaction occurs would require the Company to obtain shareholder approval to
effectuate the transaction.
3
<PAGE>
ACQUISITION, PRODUCTION AND DEVELOPMENT RISKS. The acquisition and
exploitation of producing oil and gas properties has been the key element of the
Company's success and the Company will continue to seek acquisitions in the
future. The successful acquisition of producing properties requires an
assessment of recoverable reserves, future oil and gas prices and operating
costs, potential environmental and other liabilities and other factors. Such
assessments are necessarily inexact and their accuracy inherently uncertain. In
addition, there can be no assurance that the oil or gas properties in which the
Company holds an interest will yield the volumes estimated to be producible in
the Reserve Reports. The Company's operations may be curtailed, delayed or
canceled as a result of the lack of adequate capital resources and other
factors, some of which are not within the Company's control, such as weather
conditions, compliance with governmental requirements or price controls,
mechanical difficulties and shortages or delays in the delivery of equipment.
The Company's properties may also be susceptible to hydrocarbon drainage from
production by other operators on adjacent properties. Drilling activities are
also subject to numerous risks, including the risk that no commercially
productive oil or gas reservoirs will be encountered. The cost of drilling,
completing and operating wells may exceed initial estimates.
COMPETITION. The Company operates in a highly competitive environment. The
Company competes with major and independent oil and gas companies for the
acquisition of oil and gas properties, as well as for the equipment and labor
required to develop and operate such properties. Many of these competitors have
financial and other resources substantially greater than those of the Company.
OPERATING HAZARDS. The oil and gas business involves a variety of operating
risks, including the risk of fire, explosions, blow-outs, pipe failure,
abnormally pressured formations and environmental hazards such as oil spills,
gas leaks, ruptures or discharges of toxic gases. The occurrence of any of the
preceding events could result in substantial losses to the Company due to injury
or loss of life, severe damage to or destruction of property, natural resources
and equipment, pollution or other environmental damage, clean-up
responsibilities, regulatory investigation and penalties and suspension of
operations. In addition to the foregoing, the Company's offshore operations are
subject to the additional hazards of marine operations, such as capsizing,
collision and adverse weather and sea conditions. In accordance with customary
industry practice, the Company has maintained insurance against some, but not
all, of the risks described above. There can be no assurance that any insurance
obtained by the Company will be adequate to cover any losses or liabilities. The
Company cannot predict the continued availability of insurance or the
availability of insurance at premium levels that justify its purchase.
NEED FOR ADDITIONAL CAPITAL RESOURCES. The Company has in the past
experienced working capital deficits. While management believes that the
Company's current working capital is sufficient to allow the Company to continue
to implement its present business strategy, additional capital resources will be
required in the future to fund the Company's growth.
COMPLIANCE WITH GOVERNMENTAL REGULATIONS. Oil and gas operations are
subject to various federal, state and local governmental regulations which may
be changed from time to time in response to economic or political conditions.
Matters subject to regulation include discharge permits for drilling operations,
drilling and abandonment bonds, reports concerning operations, the spacing of
wells, unitization and pooling of properties and taxation. From time to time,
regulatory agencies have imposed price controls and limitations on production by
restricting the rate of flow of oil and gas wells below actual production
capacity in order to conserve supplies of oil and gas. In addition, the
production, handling, storage, transportation and disposal of oil and gas, by-
products thereof and other substances and materials produced or used in
connection with oil and gas operations are subject to regulation under federal,
state and local laws and regulations primarily relating to protection of human
health and the environment.
4
<PAGE>
These laws and regulations have continually imposed increasingly strict
requirements for water and air pollution control and solid waste management. To
date, expenditures related to compliance with these laws have not been
significant. The Company believes, however, the trend of more expansive and
stricter environmental legislation and regulations will continue and such
legislation may result in additional costs to the Company in the future.
Amendments to the Resource Conservation and Recovery Act to regulate further the
handling, transportation, storage and disposal of oil and gas exploration and
production wastes have been considered by Congress and may be adopted. Such
legislation, if enacted, could have a significant adverse impact on the
Company's operating costs.
EFFECTS OF SHARES ELIGIBLE FOR FUTURE SALE. The future sale of a
substantial number of shares of Common Stock in the public market subsequent to
the date of this Prospectus could adversely affect the market price for the
Common Stock. The shares of Common Stock held by the Selling Shareholders will
be immediately eligible for resale in the public market without restriction,
except to the extent acquired by an affiliate of the Company.
SHORT LIFE EXPECTANCY OF OFFSHORE PROPERTY. Approximately 46% of the
Company's 1996 gross revenue was generated from its one offshore property. This
property, based on current engineering analysis, has a life expectancy of
less than 1.5 years. In December 1996, this property began to produce water and
it is anticipated that the primary well on the property will deplete in 1997.
Should the second of the two wells on this property deplete, and if no
additional drilling takes place, the Company estimates that its share of the
cost of plugging the existing well and abandoning the offshore platform could be
as much as $600,000. The Company will need to replace the revenue from this
property by exploration or acquisitions of producing properties in order to
maintain its revenues and earnings. There is no assurance that such an
acquisition or series of acquisitions will occur.
THE COMPANY
The Company is engaged in the acquisition, development and enhancement of
and exploration for oil and gas in the United States. Since mid 1994 the Company
has been focused on growth through acquisitions and exploitation and has grown
its asset base substantially. In 1996, the Company eliminated its preferred
stock and raised additional capital through private placements.
RECENT DEVELOPMENTS AFFECTING COMMON STOCK
FREMONT ACQUISITION
- -------------------
Effective January 1, 1996, the Company acquired all of the issued and
outstanding capital stock of Fremont Energy Corporation ("Fremont"), an
Oklahoma-based oil and gas company, for $7 million paid in cash and 219,554
shares (adjusted for the Reverse Split, as defined below) of Common Stock
(the "Fremont Acquisition"). Fremont has 131 wells located predominately in
central Oklahoma and Kansas concentrated in three major fields. Fremont's
estimated net proved reserves at December 31, 1995, totaled approximately
13.4 billion cubic feet equivalent determined on an SEC basis ("BCFE").
SNYDER OIL COMPANY PURCHASE AND CONVERSION OF PREFERRED STOCK
- -------------------------------------------------------------
In early 1996, certain investors, who had no prior affiliation with the
Company, purchased from Snyder Oil Company ("SOCO") approximately 20% of the
then outstanding $4.00 Senior Preferred Stock ("Preferred Stock") of the Company
and 70,818 shares (adjusted for the Reverse Split) of Common Stock (the "Snyder
Oil Share Acquisition"). Such investors entered into an agreement with the
Company, prior to their acquisition of the Preferred Stock, to vote in favor of
an amendment to the Company's Certificate of Incorporation providing for the
conversion of the Preferred Stock to Common Stock should management of the
Company decide to proceed with such a transaction. The interest of such
individuals in achieving the most favorable exchange ratio possible was aligned
with the interests of all holders of the Preferred Stock. Management was
interested in converting
5
<PAGE>
the outstanding Preferred Stock into Common Stock and eliminating the Preferred
Stock for reasons set forth in the Company's proxy statement for its meeting of
shareholders held on July 11, 1996. Conversion of the Preferred Stock to Common
Stock by amendment to the Company's Certificate of Incorporation was approved by
the Company's shareholders on July 11, 1996, resulting in Common Stock becoming
the only outstanding capital stock of the Company. In respect of such
conversion, the Company issued approximately 1,121,000 shares (adjusted for the
Reverse Split) of Common Stock increasing the total outstanding shares of Common
Stock to approximately 2,825,000 shares (adjusted for the Reverse Split). None
of the unaffiliated third parties who acquired the Preferred Stock and Common
Stock from SOCO held or currently hold more than 5% of the Common Stock and
there are no affiliations between the unaffiliated third parties and SOCO.
FIRST PRIVATE SALE
- ------------------
In June 1996, the Company completed a private sale (the "First Private
Sale") of 72,333 shares (adjusted for the Reverse Split) of Common Stock at an
average price of approximately $5.10 per share (adjusted for the Reverse Split).
SECOND PRIVATE SALE
- -------------------
On November 18, 1996, the Company completed a private sale (the "Second
Private Sale") of 1,041,722 shares (adjusted for the Reverse Split) of Common
Stock at a price of $4.80 per share (adjusted for the Reverse Split). The
private sale also included Warrants to purchase 104,175 additional shares
(adjusted for the Reverse Split) of Common Stock. Each purchaser received the
right, through Warrants, to purchase one share of Common Stock for every ten
shares of Common Stock purchased in the private sale at an exercise price of
$5.76 per share (adjusted for the Reverse Split) at any time on or before
November 18, 1999.
REVERSE SPLIT
- -------------
On November 20, 1996, the shareholders of the Company approved a one for
fifteen reverse stock split (the "Reverse Split") and a change in the authorized
shares of Common Stock from 100 million shares to 20 million shares. All Common
Stock share and price information appearing in this Prospectus has been adjusted
to reflect the Reverse Split.
HICKMAN LEASEHOLD ACQUISITION
- -----------------------------
In December 1996, the Company acquired certain leasehold rights in
approximately 691.01 net leasehold acres located within its Hickman Prospect
from certain individuals for $41,460.60 in cash and 1,885 shares of Common Stock
(the "Hickman Leasehold Acquisition").
EXPLOITATION AGREEMENT
- ----------------------
The Company has entered into an Exploitation Agreement (herein so called)
with a group of investors to participate with the Company in a program of three
dimensional seismic evaluation, lease acquisition, exploration, drilling and
development operations in certain properties in a defined area on the Eastern
Shelf of the Permian Basin. The group is to invest initially up to $1.2 million
for 50% of the Company's interest in these properties. After payout, the Company
will receive a reversionary interest of 20% on the first ten prospects and 10%
on the next ten prospects. The Company will also receive reimbursement of a
portion of its related general and administrative costs. For each $1,000
invested in this project by an investor, the investor will receive the right to
purchase, through Warrants, 41.667 shares of Common Stock. The Warrants will
expire on November 18, 1999 and will be exercisable at a price of $5.76 per
share. Such price included a premium over the price of the underlying Common
Stock at the time the Warrants were priced.
6
<PAGE>
OTHER RECENT DEVELOPMENTS
-------------------------
On December 6, 1996, Mr. Walter C. Wilson joined the Board of Directors.
Mr. Wilson, a recently retired General Agent for Massachusetts Mutual Life
Insurance Company in Houston, Texas, is a director of Chesapeake Energy
Corporation, an Oklahoma City based oil and gas exploration company, and Earth
Satellite Corporation, a Rockville, Maryland based satellite remote sensing
company.
DESCRIPTION OF COMMON STOCK
The Common Stock is currently traded on the American Stock Exchange and the
Boston Stock Exchange. There are presently 20,000,000 shares of Common Stock,
$0.05 par value, authorized. As of December 31, 1996, there were 3,883,588
shares issued and outstanding.
Each share of Common Stock entitles the holder thereof to one vote on all
matters on which holders are permitted to vote. No shareholder has any
preemptive right or other similar rights to purchase or subscribe for any
additional securities issued by the Company, and no shareholder has any right to
convert Common Stock into other securities. All outstanding Common Stock issued
is fully paid and nonassessable. No shares are subject to redemption or to any
sinking fund provisions.
The holders of shares of Common Stock are entitled to dividends when, as
and if declared by the Board of Directors from funds legally available therefore
and, upon liquidation, to a pro rata share in any distribution to shareholders.
The Company does not anticipate declaring or paying any cash dividend in the
foreseeable future.
DESCRIPTION OF WARRANTS
The Warrants have been or are to be issued in registered form under
separate Warrant Agreements (individually "Warrant Agreement" and collectively
"Warrant Agreements") between the Company and a Warrant Agent, herein so called.
Warrants to acquire a total of 104,175 shares of Common Stock were issued in
connection with a private placement of Common Stock by the Company in November
1996. See "Recent Developments; Second Private Placement." Warrants to acquire
an additional 50,000 shares of Common Stock are expected to be issued in
connection with the Exploitation Agreement. See "Recent Developments;
Exploitation Agreement."
The statements under this caption are summaries and do not purport to be
complete and are subject to, and are qualified in their entirety by reference to
all the provisions of the Warrants and the Warrant Agreements, including the
definitions therein of certain terms. Wherever particular provisions or defined
terms of the Warrant Agreements are referred to, such provisions and defined
terms are incorporated herein by reference. Copies of the Warrant Agreements are
available upon written request to: Amerac Energy Corporation, 1201 Louisiana,
Suite 3350, Houston, Texas 77002, Attention: Richard B. Hallett, Vice President,
Chief Financial Officer and Secretary.
RIGHTS TO PURCHASE COMMON STOCK
- -------------------------------
Each Warrant entitles the registered holder ("Warrant Holder") to purchase
a designated number of shares of Common Stock at an exercise price of $5.76 per
share, subject to adjustment (the "Warrant Price"), at any time after issuance
up to and including 5:00 p.m. New York City time, November 18, 1999, in
accordance with the terms of the Warrants and the applicable Warrant Agreement.
ADJUSTMENTS
- -----------
The Warrant Price and the number of shares of Common Stock purchasable upon
the exercise of each Warrant are subject to adjustment in certain events,
including (a) the payment of certain dividends or distributions in shares of
Common Stock to holders of Common Stock and (b) certain combinations,
subdivisions or reclassifications of Common Stock. In addition, if shares of any
class of capital stock of the Company (other than Common Stock) are issued by
way of a stock dividend, each Warrant Holder shall be entitled to receive, upon
exercise of a Warrant, as
7
<PAGE>
nearly as practicable, the same number of shares of dividend stock which the
Warrant Holder would have been entitled to receive had the Warrant Holder's
Warrant been exercised immediately prior to such stock dividend.
MODIFICATION OF THE WARRANT AGREEMENTS
- --------------------------------------
Each Warrant Agreement contains a provision permitting the Company and the
Warrant Agent, without the consent or concurrence of any Warrant Holder to
supplement or amend the Warrant Agreement in order to cure any ambiguity or to
correct or supplement any provision that may be defective or inconsistent with
any other provision.
OTHER MATTERS
- -------------
Except as set forth above, Warrant Holders are not entitled, by virtue of
their status as such, to any dividend, voting or other rights as shareholders of
the Company.
USE OF PROCEEDS
The Company will not receive any of the proceeds from the sale of shares of
the Common Stock or the Warrants by the Selling Shareholders. The Company will
receive the exercise price of the Warrants if and when exercised. See "Selling
Shareholders."
DILUTION
The interest in the Company of each holder of the Common Stock will be
diluted to the extent that the Warrants are exercised. Assuming all of the
Warrants are exercised, a total of 154,175 shares of Common Stock will be issued
by the Company. Based upon the total of 3,883,588 shares of Common Stock issued
and outstanding on December 31, 1996, shares issuable upon exercise of the
Warrants will represent approximately four percent of the issued and outstanding
shares of Common Stock following issuance of such shares. On April 3, 1997, the
Warrant Price was $.49 below the last sale price of the Common Stock on the
American Stock Exchange.
SELLING SHAREHOLDERS
Certain of the Selling Shareholders are officers, directors or service
providers of the Company who acquired an aggregate of 45,593 shares of the
Common Stock as compensation for services. Such Selling Shareholders also hold
(or will hold) an additional 108,333 shares of the Common Stock and, in certain
cases, Warrants to acquire a total of 16,125 shares of Common Stock, which were
(or are to be) acquired in the Second Private Sale or under the Exploitation
Agreement. See "Recent Developments." The remainder of the Selling Shareholders
acquired shares of the Common Stock and, in certain cases, the Warrants in
connection with acquisitions of properties or leasehold rights by the Company,
or in private placements by the Company, or through negotiated purchases of the
Company's securities from affiliates of the Company. See "Recent Developments."
The chart below sets out or summarizes the names of the Selling Shareholders,
their relationships to the Company, in the case of officers, directors and
service providers, and the manner of acquisition by the Selling Shareholders of
the Common Stock or the Warrants which are the subject of this offering. The
Warrants all are exercisable at $5.76 per share and expire on November 18, 1999.
To the best of the Company's knowledge, based on filings with the Commission,
none of the Selling Shareholders currently owns 5% or greater of the outstanding
shares of the Common Stock. All shares below have been restated to reflect the
Reverse Split. See "Recent Developments".
8
<PAGE>
<TABLE>
<CAPTION>
- SHARES OF COMMON
SHARES OF COMMON STOCK TO BE
RELATIONSHIP STOCK BEING ACQUIRED ON
------------ REGISTERED EXERCISE OF
---------- WARRANTS
--------
NAME
----
<S> <C> <C> <C> <C>
OFFICERS, DIRECTORS AND
- -----------------------
SERVICE PROVIDERS
- -----------------
Michael Harvey Director (1) 4,955
William P. Nicoletti Director (2) 13,612 583
The Chase Manhattan Bank as Trustee for (2) 20,833 2,083
William P. Nicoletti: IRA rollover
Kenneth R. Peak Director (3) 4,956
Jeffrey B. Robinson Director and CEO (4) 35,269 2,667
Walter C. Wilson Director (5) 52,575 10,542
Petroleum Financial, Inc. Service Provider (6) 7,556
Richard J. Savoie Vice President (7) 5,188 250
Nicoletti & Company Inc. Service Provider (8) 8,982
FREMONT ACQUISITION
- -------------------
Powell Resources, Inc. 134,477
Thomas O. Goldsworthy 74,099
The Langestroth Family Limited I 5,489
James B. Tollerton 5,489
SNYDER OIL SHARE ACQUISITION
- ----------------------------
Eric M. Stroud 6,273
William S. Fagan 26,722
Marshall B. Payne 47,422
Edward W. Rose 32,669
R. Todd Rankin 3,136
James H. McCuistion 62,718
WPM Exploration, Inc. 16,356
William P. Mills 10,451
</TABLE>
9
<PAGE>
<TABLE>
<CAPTION>
SHARES OF COMMON
SHARES OF COMMON STOCK TO BE
RELATIONSHIP STOCK BEING ACQUIRED ON
------------ REGISTERED EXERCISE OF
---------- WARRANTS
--------
NAME
----
<S> <C> <C> <C> <C>
WPM Exploration, Inc. Profit Sharing 39,962
Plan
Ann Quentin White 18,696
Elizabeth White 18,695
Cardinal Investors, L. P. 13,278
FIRST PRIVATE SALE
- ------------------
Teri Adair Birdsall 10,000
Coronado Mining & Minerals 5,175
Leslie W. Cundiff 16,666
William P. Mills, III 2,405
William P. Mills, III, as
Custodian for Elizabeth F. Mills, Minor 480
William P. Mills, III, as
Custodian for Ashley B. Mills, Minor 480
William P. Mills, III, as
Custodian for William P. Mills, IV,
Minor 480
William P. Mills, III, as
Custodian for David M. Mills, Minor 480
William P. Mills, III, as
Custodian for Olivia C. Mills, Minor 480
William P. Mills, III,
Trustee U/A DTD 1/1/79
WPM Exploration, Inc.
Profit Sharing Plan 10,010
WPM Exploration, Inc. 10,010
E.R. Duke 3,333
Robert J. Paradiso & Copper L. Paradiso 4,000
James W. McCartney 8,333
</TABLE>
10
<PAGE>
<TABLE>
<CAPTION>
SHARES OF COMMON
SHARES OF COMMON STOCK TO BE
RELATIONSHIP STOCK BEING ACQUIRED ON
------------ REGISTERED EXERCISE OF
---------- WARRANTS
--------
NAME
----
<S> <C> <C> <C> <C>
SECOND PRIVATE SALE
- -------------------
James D. & Donna D. Edgeworth, Jr. 5,208 521
Elwood W. Shafer 5,000 500
Breene M. Kerr 26,041 2,604
Vincent J. Dowling, Jr. 31,250 3,125
Michael D. Bodino 3,750 375
Leslie W. Cundiff 20,833 2,083
Mark W. & Cathryn L. Kellstom 4,167 417
John H. Foster 20,833 2,083
John J. Mack 20,833 2,083
The Six Investors (5) 2,083 208
Richard C. Nelson 10,416 1,042
Offense Group Associates, L.P. 83,333 8,333
Kayne, Anderson Offshore Limited 20,833 2,083
Dominion Financial Group International, LDC 20,833 2,083
C. Rand Michaels & Joyce L. Michaels 5,208 521
Francis J. Reinhardt, Jr. 20,833 2,083
Charles E. Ramsey, Jr. & Carletta G. Ramsey 13,958 1,396
Delaware Charter Guarantee & Trust Co.,
David S. Nagelberg IRA 46,667 4,667
Delaware Charter Guarantee & Trust Co., FBO
Ronald I. Heller - IRA 46,667 4,667
Rosario S. Ilacqua 3,125 313
Dennis L. Adams 10,417 1,042
William J. Ross & Mary Lillian Ross JTWROS 10,417 1,042
Norville Oil Co., L.L.C. 31,250 3,125
Amelie M. Porter 5,208 521
Michael M. Weisbrot & Susan R. Weisbrot,
JTWROS 10,417 1,042
IDC Energy Corporation 52,100 5,210
</TABLE>
11
<PAGE>
<TABLE>
<CAPTION>
SHARES OF COMMON
SHARES OF COMMON STOCK TO BE
RELATIONSHIP STOCK BEING ACQUIRED ON
------------ REGISTERED EXERCISE OF
---------- WARRANTS
--------
NAME
----
<S> <C> <C> <C> <C>
J. Hugh Roff, Jr. 41,666 4,167
Gene P. Morrell 12,500 1,250
F.B. Whittemore 20,833 2,083
Centennial Energy Partners L.P. 62,500 6,250
Tercentennial Energy Partners, L.P. 62,500 6,250
William P. Mills III 5,208 521
J. Hawley Wilson, Jr. 5,208 521
Boatman's Trust Co. J. Hawley Wilson,
Jr. IRA 5,208 521
Thomas F. Doyle 41,667 4,167
Jonathan R. Longley 62,500 6,250
Leonard Jaffe & Elaine J. Jaffe 5,208 521
EOS Partners, L.P. 52,083 5,208
John Robert Porter 10,416 1,042
Sterling McKittrick, Jr. 3,125 313
Patricia L. Lorusso & Ralph F. Lorusso 5,208 521
Barbara A. & John R. Everett 666 67
WPM Exploration, Inc. Profit Sharing
Plan 5,208 521
HICKMAN LEASEHOLD ACQUISITION
- -----------------------------
William H. Price 1,035
Robert W. Carter 236
Patwell Oil & Gas Company 212
Mary Lou Coleman 188
Billy G. Holcomb 47
Charles H. Lehne 47
William H. Price, Jr. 60
Michael R. Price 60
</TABLE>
12
<PAGE>
<TABLE>
<CAPTION>
SHARES OF COMMON
SHARES OF COMMON STOCK TO BE
RELATIONSHIP STOCK BEING ACQUIRED ON
------------ REGISTERED EXERCISE OF
---------- WARRANTS
--------
NAME
----
<S> <C> <C> <C> <C>
EXPLOITATION AGREEMENT
- ----------------------
Frederick B. Whittemore 8,332
Johnathan R. Longley 6,250
Breene M. Kerr 5,208
Mort Swinsky 4,167
Thomas F. Doyle 4,167
J. Hugh Roff, Jr. 4,167
Vincent J. Dowling, Jr. 3,125
Norville Oil Co., L.L.C. 3,125
Richard C. Nelson 2,083
Gene P. Morrell 1,667
Charles E. Ramsey, Jr. 1,375
John Robert Porter 1,042
-------
Totals 1,677,459 154,175
========= =======
</TABLE>
- ----------------------------------------
(1) Mr. Harvey received 4,955 shares as compensation for services as a
director.
(2) Mr. Nicoletti purchased 5,833 shares in the Second Private Sale for
$4.80 per share and also received Warrants to acquire and additional 583
shares. Mr. Nicoletti also purchased 20,833 shares in the Second
Private Sale through his IRA. His IRA received Warrants in the Second
Private Sale to acquire an additional 2,083 shares. Mr. Nicoletti also
received 7,779 shares as compensation for services as a director.
(3) Mr. Peak received 4,956 shares as compensation for services as a
director.
(4) Mr. Robinson purchased 26,667 shares in the Second Private Sale at $4.80
per share and also received Warrants to acquire an additional 2,667
shares. Mr. Robinson also received 8,602 shares as compensation for
services as a director and as CEO of the Company.
(5) Mr. Wilson purchased 52,083 shares in the Second Private Sale for $4.80
per share and also received Warrants to acquire an additional 5,208
shares. Mr. Wilson will receive Warrants to acquire 5,292 additional
shares under the Exploitation Agreement. Mr. Wilson received 75 shares
as compensation for services as a director. An additional 417 shares
and 42 Warrants are shown opposite Mr. Wilson's name above to reflect
his 1/6 interest in a total of 2,500 shares and 250 Warrants held by The
Six Investors partnership.
(6) Petroleum Financial, Inc. received 7,556 shares as compensation for
accounting services. Petroleum Financial, Inc. is controlled by Jeffrey
L. Stevens, a director and officer of the Company.
(7) Mr. Savoie purchased 2,500 shares in the Second Private Sale at $4.80
per share and received Warrants to acquire an additional 250 shares. He
also received 2,688 shares as compensation for services as an officer of
the Company.
(8) Nicoletti & Company Inc. received 8,982 shares as compensation for
investment banking services rendered in connection with the Second
Private Sale. Nicoletti & Company Inc. is wholly owned by William P.
Nicoletti.
13
<PAGE>
PLAN OF DISTRIBUTION
This Prospectus relates to (i) 1,677,459 shares of Common Stock that may be
offered from time to time by the Selling Shareholders, and (ii) 154,175 shares
of Common Stock that may be issued under Warrants issued in connection with the
Second Private Sale and pursuant to the Exploitation Agreement and that may
thereafter be sold by the holders thereof. The Company will receive proceeds
from the issuance of Common Stock upon exercise of the Warrants, but no part of
the proceeds of sales of Common Stock sold by the holders thereof. See "Selling
Shareholders."
A total of 154,175 shares of Common Stock offered hereby may be issued to
the Selling Shareholders upon the exercise of the Warrants. The Selling
Shareholders could then sell the shares of Common Stock directly to purchasers
at or near market prices prevailing at the time of sale. The Warrants have not
been and are not being registered, however the underlying shares of Common Stock
that will be issued upon the exercise of the Warrants by the holder or the
transferee are being registered hereby.
The Selling Shareholders may sell all or a portion of the shares of Common
Stock offered by this Prospectus from time to time (i) on the American Stock
Exchange or the Boston Stock Exchange at prices reasonably related to the prices
of the Common Stock prevailing at the time of sale, (ii) otherwise than on the
American Stock Exchange or the Boston Stock Exchange in negotiated transactions
(which may include the pledge or hypothecation of some or all of the shares), at
fixed prices that may be changed, at market prices prevailing at the time of
sale or at prices reasonably related thereto or at negotiated prices, or (iii)
by a combination of the foregoing methods. In addition, a Selling Shareholder
may deliver shares of Common Stock offered by this Prospectus from time to time
to cover short sales made by such Selling Shareholder. The Selling Shareholders
may effect the transactions by selling the shares of Common Stock to or through
brokers and the brokers may receive compensation in the form of commissions from
the Selling Shareholders. The Selling Shareholders and any broker, dealer or
agent executing sell orders on behalf of the Selling Shareholders may be deemed
to be "underwriters" within the meaning of the Securities Act, in which event
commissions received by the broker, dealer or agent and the profit on any resale
of the shares of Common Stock may be deemed to be underwriting commissions under
the Securities Act.
In effecting the sale of the shares of Common Stock offered by this
Prospectus, a Selling Shareholder who is participating in a distribution, as
defined in Regulation M under the Exchange Act, will be required to comply with
Rule 102 of Regulation M. Rule 102 will require such Selling Shareholder, as
well as any person who acts in concert with the Selling Shareholder, and the
broker, if any, who sells the shares on behalf of the Selling Shareholder, to
suspend all purchases of shares of the Common Stock at least one and possibly
five business days prior to and until completion of the Selling Shareholder's
participation in the distribution. Because some of the Selling Shareholders may
be deemed to be affiliates of the Company under the Exchange Act, Rule 102, if
applicable, will also require the Company and all persons who are in a control
relationship with the Company to suspend all purchases of the Company's Common
Stock at least one and possibly five business days prior to and until completion
of an affiliate Selling Shareholder's participation in a distribution. When
considered appropriate by the Company, the Company will require the Selling
Shareholders and each of their underwriters, brokers, or dealers, if applicable,
to provide a letter that evidences inapplicability of or represents compliance
with Rule 102 before the Company will authorize the transfer of the Selling
Shareholders' shares of Common Stock.
The Company has agreed to indemnify those Selling Shareholders who are
parties to Registration Rights Agreements with the Company against certain
liabilities, including liabilities under the Securities Act.
14
<PAGE>
EXPERTS
The consolidated financial statements incorporated in this Prospectus by
reference to the Annual Report on Form 10-KSB of Amerac Energy Corporation for
the year ended December 31, 1996 have been so incorporated in reliance on the
report of Price Waterhouse LLP, independent accountants, given on the authority
of said firm as experts in auditing and accounting.
No dealer, salesperson or any other person has been authorized to give any
information or to make any representation in connection with this offering other
than those contained in this Prospectus, and, if given or made, the information
or representation must not be relied upon as having been authorized by the
Company. This Prospectus does not constitute an offer to sell or solicitation or
any offer to buy by anyone in any jurisdiction in which the offer or
solicitation is not authorized, or in which the person making the offer or
solicitation is not qualified to do so or to any person to whom it is unlawful
to make the offer or solicitation. Neither the delivery of this Prospectus nor
any sale hereunder shall, under any circumstances, create any implication that
there has been no change in the affairs of the Company since the date hereof or
that the information contained herein is correct as of any time subsequent to
its date.
15
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table indicates the expenses to be incurred in connection
with the issuance and distribution of the securities described in this
Registration Statement, other than underwriting discounts and commissions. The
Company will pay all the expenses.
<TABLE>
<CAPTION>
<S> <C>
SEC registration fee $ 3,447
Blue sky fees 20,000
Accounting fees and expenses 5,000
Legal fees and expenses 20,000
Miscellaneous 5,553
-------
Total $54,000
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company has authority under (S)145 of the General Corporation Law of
Delaware to indemnify its officer and directors to the extent provided in the
statute. Article Sixteenth of the Company's Certificate of Incorporation
provides for indemnification of directors and officers to the full extent
permitted by the General Corporation Law of Delaware.
The Company intends to continue to maintain insurance against any liability
incurred by its officers and directors in defense of any actions to which they
are made parties by reason of their positions as officers and directors.
The Company's Certificate of Incorporation also limits or eliminates a
director's liability for monetary damages to the Company or its stockholders for
acts or omissions in the directors capacity as a director.
ITEM 16. EXHIBITS
The following exhibits are filed as a part hereof:
4(i).1 Certificate of Incorporation of Wolverine Exploration Company
(incorporated by reference as Exhibit 3-(1) to the Company's
Registration Statement No. 33-21824 filed May 13, 1988).
4(i).2 Amendment to Certificate of Incorporation of Wolverine Exploration
Company dated September 12, 1988 (incorporated by reference as
Exhibit 3-(1)(a) to the Company's Registration Statement No. 33-
24429 filed September 28, 1988).
4(i).3 Amendment to Certificate of Incorporation of Wolverine Exploration
Company dated March 28, 1995 (incorporated by reference to Annex
IV to Exhibit (a)(1) to Schedule 13E-4, dated November 15, 1994).
4(i).4 Amendment to Certificate of Incorporation of Amerac Energy
Corporation dated July 12, 1996 (incorporated by reference to
Exhibit 4(i).4 to the Company's Current Report on Form 8-K dated
February 28, 1997).
16
<PAGE>
4(i).5 Amendment to Certificate of Incorporation of Amerac Energy
Corporation dated July 12, 1996 (incorporated by reference to
Exhibit 4(i).5 to the Company's Current Report on Form 8-K dated
February 28, 1997).
4(i).6 Amendment to Certificate of Incorporation of Amerac Energy
Corporation dated November 21, 1996 (incorporated by reference to
Exhibit 4(i).6 to the Company's Current Report on Form 8-K dated
February 28, 1997).
4(i).7 Corporate Bylaws (incorporated by reference to Exhibit C to the
Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1987, File No. 0-5003).
4(i).8 Warrant Agreement, dated November 18, 1996, between Amerac Energy
Corporation and Petroleum Financial, Inc.
4(i).9 Form of Warrant (included as Exhibit I to the Warrant Agreement
referred to in Exhibit to 4(i).8)
4(i).10 Registration Rights Agreement, dated November 18, 1996, between
Amerac Energy Corporation and the party identified therein. A
document identical to this document, except for the name of the
Holder and the Holder's address for notices, was entered into by
the Company with each purchaser in the Second Private Sale.
Substantially identical documents also exist between the Company
and the persons or entities involved in the Fremont Acquisition
(see Exhibit 10-(10) to the Company's Annual Report on Form 10-K
for the fiscal year ended December 31, 1995) and certain of the
purchasers of the Company's capital stock in the Snyder Oil Share
Acquisition.
4(i).11 Exploitation Agreement, dated effective January 1, 1997, between
Amerac Energy Corporation and the parties identified therein
(incorporated by reference to Exhibit 4(i).8 to the Company's
Current Report on Form 8-K dated February 28, 1997).
4(i).12 Form of Warrant Agreement (included as Exhibit VI to the
Exploitation Agreement referred to in Exhibit 4(i).11).
4(i).13 Form of Warrant (included as Exhibit I to the Warrant Agreement
referred to in Exhibit 4(i).12).
4(i).14 Form of Registration Rights Agreement (included as Exhibit VII to
the Exploitation Agreement referred to in Exhibit 4(i).11).
5 Opinion of Cantey & Hanger, L.L.P.
23.1 Consent of Price Waterhouse LLP
23.2 Consent of Cantey & Hanger, L.L.P. (included in opinion,
Exhibit 5)
24 Power of Attorney (included on the signature page of the
Registration Statement)
17
<PAGE>
ITEM 17. UNDERTAKINGS
A. The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or
the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the Registration
Statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the
Registration Statement or any material change to such
information in the Registration Statement;
provided, however, that paragraphs A(1)(i) and A(1) (ii) do not apply if the
information required to be included in a post-effective amendment by these
paragraphs is contained in periodic reports filed by the registrant pursuant to
section 13 or section 15(d) of the Securities Exchange Act of 1934.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
B. Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person in the successful
defense of any action, suit or proceeding) is asserted by such director, officer
or controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of such
issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Houston, Texas on the 4th day of April, 1997.
Amerac Energy Corporation
By:
------------------------------------------
Vice President, Chief Financial Officer
and Secretary
18
<PAGE>
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated. Each of the undersigned hereby constitutes and appoints Richard
B. Hallett his true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, with full power to act alone, to sign any and all
documents (including pre- and post-effective amendments in connection with this
Registration Statement), and to file the same, with all exhibits thereto, and
all documents in connection therewith, with the Securities and Exchange
Commission, granting onto said attorney-in-fact and agent, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent, or his substitutes or substitute, may lawfully do or
cause to be done by virtue thereof.
SIGNATURE TITLE DATE
- ---------------------- Director, President and Chief
Jeffrey B. Robinson Executive Officer ------------
(Principal Executive Officer)
- ---------------------- Vice President, Chief Financial ------------
Richard B. Hallett Officer and Secretary
(Principal Financial Officer and
Principal Accounting Officer)
- ----------------------- Director and Assistant Secretary ------------
Jeffrey L. Stevens
- --------------------- Director ------------
Walter C. Wilson
- --------------------- Director ------------
Kenneth R. Peak
19
<PAGE>
EXHIBIT INDEX
4(i).1 Certificate of Incorporation of Wolverine Exploration Company
(incorporated by reference as Exhibit 3-(1) to the Company's
Registration Statement No. 33-21824 filed May 13, 1988).
4(i).2 Amendment to Certificate of Incorporation of Wolverine Exploration
Company dated September 12, 1988 (incorporated by reference as
Exhibit 3-(1)(a) to the Company's Registration Statement No. 33-
24429 filed September 28, 1988).
4(i).3 Amendment to Certificate of Incorporation of Wolverine Exploration
Company dated March 28, 1995 (incorporated by reference to Annex
IV to Exhibit (a)(1) to Schedule 13E-4, dated November 15, 1994).
4(i).4 Amendment to Certificate of Incorporation of Amerac Energy
Corporation dated July 12, 1996 (incorporated by reference to
Exhibit 4(i).4 to the Company's Current Report on Form 8-K dated
February 28, 1997).
4(i).5 Amendment to Certificate of Incorporation of Amerac Energy
Corporation dated July 12, 1996 (incorporated by reference to
Exhibit 4(i).5 to the Company's Current Report on Form 8-K dated
February 28, 1997).
4(i).6 Amendment to Certificate of Incorporation of Amerac Energy
Corporation dated November 21, 1996 (incorporated by reference to
Exhibit 4(i).6 to the Company's Current Report on Form 8-K dated
February 28, 1997).
4(i).7 Corporate Bylaws (incorporated by reference to Exhibit C to the
Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1987, File No. 0-5003).
4(i).8 Warrant Agreement, dated November 18, 1996, between Amerac Energy
Corporation and Petroleum Financial, Inc.
4(i).9 Form of Warrant (included as Exhibit I to the Warrant Agreement
referred to in Exhibit to 4(i).8)
4(i).10 Registration Rights Agreement, dated November 18, 1996, between
Amerac Energy Corporation and the party identified therein. A
document identical to this document, except for the name of the
Holder and the Holder's address for notices, was entered into by
the Company with each purchaser in the Second Private Sale.
Substantially identical documents also exist between the Company
and the persons or entities involved in the Fremont Acquisition
(see Exhibit 10-(10) to the Company's Annual Report on Form 10-K
for the fiscal year ended December 31, 1995) and certain of the
purchasers of the Company's capital stock in the Snyder Oil Share
Acquisition.
4(i).11 Exploitation Agreement, dated effective January 1, 1997, between
Amerac Energy Corporation and the parties identified therein
(incorporated by reference to Exhibit 4(i).8 to the Company's
Current Report on Form 8-K dated February 28, 1997).
4(i).12 Form of Warrant Agreement (included as Exhibit VI to the
Exploitation Agreement referred to in Exhibit 4(i).11).
4(i).13 Form of Warrant (included as Exhibit I to the Warrant Agreement
referred to in Exhibit 4(i).12).
4(i).14 Form of Registration Rights Agreement (included as Exhibit VII to
the Exploitation Agreement referred to in Exhibit 4(i).11).
5 Opinion of Cantey & Hanger, L.L.P.
23.1 Consent of Price Waterhouse LLP
23.2 Consent of Cantey & Hanger, L.L.P. (included in opinion, Exhibit
5)
24 Power of Attorney (included on the signature page of the
Registration Statement)
20
<PAGE>
EXHIBIT 4(i).B
WARRANT AGREEMENT
-----------------
AGREEMENT made as of November 18, 1996, between Amerac Energy Corporation,
a Delaware corporation, herein called the Company, and Petroleum Financial Inc,
a Texas corporation, herein called the Warrant Agent.
WHEREAS, the Company has determined to issue and deliver Stock Purchase
Warrants, hereinafter called Warrants, entitling the holders thereof to purchase
1,562,588 shares (the "Warrant Shares") of Common Stock; par value $.05 per
share of the Company the (the "Common Stock"); and
WHEREAS, the Company desires to provide for the form and provisions of the
Warrants, the terms upon which they shall be issued and exercised, and the
respective rights, limitation of rights, and immunities of the Company, the
Warrant Agent, and the bearers of the Warrants; and
WHEREAS, all acts and things necessary to make the Warrants when executed
on behalf of the Company and countersigned by or on behalf of the Warrant Agent,
as in this agreement provided, the valid, binding, and legal obligations of the
Company, and to authorize the execution and delivery of this agreement, have
been done and performed;
NOW, THEREFORE, in consideration of the mutual agreements herein contained,
the parties hereto agree as follows:
Article I
Execution and Countersignature of Warrants
Section 1.01. Execution and countersignature of Warrants.
------------------------------------------
(a) Each Warrant, whenever issued, shall be dated November 18, 1996, shall
be in substantially the form of Exhibit 1 hereto, shall be signed by, or bear
the facsimile signature of, the President or a Vice President of the Company and
shall bear a facsimile of the Company's seal. In case any officer whose
facsimile signature has been placed upon any Warrant shall have ceased to be
such before such Warrant is issued, it may be issued with the same effect as if
such officer had not ceased to be such at the date of issuance. No Warrant may
be exercised until it has been countersigned by the Warrant Agent as provided in
paragraph (b) below.
(b) The Warrant Agent shall countersign a Warrant only
(i) if the Warrant is to be issued in exchange or substitution for
one or more previously countersigned Warrants, as hereinafter provided, or
<PAGE>
(ii) if the Company instructs the Warrant Agent to do so.
(c) Unless and until countersigned by the Warrant Agent pursuant to this
agreement, a Warrant shall be invalid and of no effect.
Article II
Warrant Price, Duration and Exercise of Warrants
Section 2.01. Warrant Price. Each Warrant shall, when countersigned by the
-------------
Warrant Agent, entitle the bearer thereof, subject to the provisions thereof and
of this agreement, to purchase from the Company the number of Warrant Shares
stated therein, at the price of $0.384 per share, subject to adjustment as
provided in Article III hereof. The term Warrant Price as used in this agreement
refers to the price per share at which Common Stock may be purchased at the time
a Warrant is exercised.
Section 2.02. Duration of Warrants. Warrants may be exercised only on or
--------------------
before November 18, 1999, hereinafter called the expiration date. Each Warrant
not exercised on or before the expiration date shall become void, and all rights
thereunder and all rights in respect thereof under this agreement shall cease at
the close of business on the expiration date.
Section 2.03. Exercise of Warrants.
--------------------
(a) A Warrant, when countersigned by the Warrant Agent, may be exercised by
surrendering it, at the corporate trust office of the Warrant Agent in Fort
Worth, Texas, with the subscription form set forth in the Warrant duly executed,
and by paying in full, in lawful money of the United States, the Warrant price
for each full share of Common Stock as to which the Warrant is exercised and any
applicable taxes.
(b) As soon as practicable after the exercise of any Warrant, the Company
shall issue to or upon the order of the bearer of such Warrant a certificate or
certificates for the number of full Warrant Shares to which he is entitled,
registered in such name or names as may be directed by him, and, if such Warrant
shall not have been exercised in full (except with respect to a remaining
fraction of a share), a new countersigned Warrant for the number of Warrant
Shares (including fractional shares) as to which such Warrant shall not have
been exercised. In the event that the same holder of one or more Warrants
exercises the purchase rights thereunder in the same transaction in a manner
which leaves the right to purchase a fraction of a share unexercised, the
Company shall pay a cash adjustment in respect of such final fraction in an
amount equal to the same fraction of the current market price of a
2
<PAGE>
share of Common Stock on the business day which next precedes the day of
exercise reduced by the same fraction of the Warrant Price of a share of Common
Stock on such day. For such purpose, the current market price shall be the last
sale price of the Common Stock on such next preceding business day, or, if no
sale takes place on such day, the average of the closing bid and asked prices on
such day, as officially quoted, as reported in the principal reporting system
with respect to securities listed on the principal national securities exchange
on which the Common Stock is listed or admitted to trading or, if the Common
Stock is not listed or admitted to trading on any national securities exchange,
the last quoted price or, if not so quoted, the average of the high bid and low
asked prices in the over-the-counter market, as reported by NASDAQ or such other
system then in use or, if on any such date the Common Stock is not quoted by any
such organization, the average of the closing bid and asked prices as furnished
by a professional market maker making a market in the Common Stock selected by
the Board of Directors of the Company. If on any such date no such market maker
is making a market in the Common Stock the fair value of the Common Stock on
such date as determined in good faith by the Board of Directors of the Company
shall be used.
(c) All Warrant Shares issued upon the exercise of a Warrant shall be
validly issued, and the Company shall pay all taxes in respect of the issue
thereof. The Company shall not be required, however, to pay any tax imposed in
connection with any transfer involved in the issue of a certificate for shares
of Common Stock in any name other than that of the bearer of the Warrant
surrendered in connection with the purchase thereof; and in such case the
Company shall not be required to issue or deliver any stock certificate until
such tax shall have been paid.
(d) Each person in whose name any such certificate for Warrant
Shares is issued shall for all purposes be deemed to have become the holder of
record of such shares on the date on which the Warrant was surrendered and
payment of the Warrant Price and any applicable taxes was made, irrespective of
the date of delivery of such certificate, except that, if the date of such
surrender and payment is a date when the stock transfer books of the Company are
closed, such person shall be deemed to have become the holder of such shares at
the close of business on the next succeeding date on which the stock transfer
books are open.
Article III
Adjustments
Section 3.01. Stock dividends--split-ups. If after the date
--------------------------
hereof, and subject to the provisions of Section 3.07 below, the number of
outstanding shares of Common Stock is increased by a
3
<PAGE>
stock dividend payable in shares of Common Stock or by a split-up of shares of
Common Stock, then, on the date fixed for the determination of holders of Common
Stock entitled to receive such stock dividend or split-up, the number of shares
issuable on exercise of each Warrant shall be increased in proportion to such
increase in outstanding shares and the then applicable Warrant Price shall be
correspondingly decreased.
Section 3.02. Aggregation of shares. If after the date hereof, and subject
---------------------
to the provisions of Section 3.07, the number of outstanding shares of Common
Stock is decreased by a combination or reclassification of shares of Common
Stock, then, upon the effective date of such combination or reclassification,
the number of shares issuable on exercise of each Warrant shall be decreased in
proportion to such decrease in outstanding shares and the then applicable
Warrant Price shall be correspondingly increased.
Section 3.03. Special stock dividends. If after the date hereof shares of
-----------------------
any class of the Company (other than Common Stock) are issued by way of a stock
dividend on outstanding Common Stock, then, commencing with the date fixed for
the determination of holders of Common Stock entitled to receive such stock
dividend, in addition to any share of Common Stock receivable upon exercise of
the Warrants, the Warrant holders shall, upon such exercise of the Warrants, be
entitled to receive, as nearly as practicable, the same number of shares of
dividend stock, plus any shares issued upon any subsequent change, replacement,
subdivision, or combination thereof to which the holders would have been
entitled had their Warrants been exercised immediately prior to such stock
dividend. No adjustment in the Warrant Price shall be made merely by virtue of
the happening of any event specified in this Section 3.03.
Section 3.04. Reorganization, merger and asset sales. If after the date
--------------------------------------
hereof any capital reorganization or reclassification of the Common Stock of the
Company, or consolidation or merger of the Company with another corporation, or
the sale of all or substantially all of its assets to another corporation shall
be effected, then, as a condition of such reorganization, reclassification,
consolidation, merger, or sale, lawful and fair provision shall be made whereby
the Warrant holders shall thereafter have the right to purchase and receive upon
the basis and upon the terms and conditions specified in the Warrants and in
lieu of the shares of Common Stock of the Company immediately theretofore
purchasable and receivable upon the exercise of the rights represented thereby,
such shares of stock, securities, or assets as may be issued or payable with
respect to or in exchange for a number of outstanding shares of such Common
Stock equal to the number of shares of such stock immediately theretofore
purchasable and receivable upon the exercise of the rights represented by the
Warrants had such reorganization,
4
<PAGE>
reclassification, consolidation, merger, or sale not taken place, and in any
such case appropriate provision shall be made with respect to the rights
interests of the Warrant holders to the end that the provisions hereof
(including, without limitation, provisions for adjustments of the Warrant Price
and of the number of shares purchasable upon the exercise of the Warrants) shall
thereafter be applicable, as nearly as may be in relation to any share of stock,
securities, or assets thereafter deliverable upon the exercise hereof. The
Company shall not effect any such consolidation, merger, or sale unless prior to
the consummation thereof the successor corporation (if other than the Company)
resulting from such consolidation or merger, or the corporation purchasing such
assets, shall assume by written instrument executed and delivered to the Warrant
Agent the obligation to deliver to the Warrant holders such shares of stock,
securities, or assets as, in accordance with the foregoing provisions, such
holders may be entitled to purchase.
Section 3.05. Notice of changes in Warrants. Upon any adjustment of the
-----------------------------
Warrant Price or the number of shares issuable on exercise of a Warrant, then
and in each such case the Company shall promptly give written notice thereof to
the Warrant Agent, which notice shall state the Warrant Price resulting from
such adjustment and the increase or decrease, if any, in the number of shares
purchasable at such price upon the exercise of a Warrant, setting forth in
reasonable detail the method of calculation and the facts upon which such
calculation is based. The Company shall also mail such notice to the address on
the records of the Warrant Agent. Failure to give or publish such notice, or any
defect therein, shall not affect the legality or validity of the subject
adjustments.
Section 3.06. Other notices. In case at any time:
-------------
(a) the Company shall pay any dividends payable in stock upon its Common
Stock or make any distribution (other than regular cash dividends) to the
holders of its Common Stock;
(b) the Company shall offer for subscription pro rata to the holders of its
Common Stock any additional shares of stock of any class or other rights;
(c) there shall be any capital reorganization, or reclassification of the
capital stock of the Company, or consolidation or merger of the Company with, or
sale of all or substantially all of its assets to, another corporation; and
(d) there shall be a voluntary or involuntary dissolution, liquidation, or
winding up of the Company;
then, in any one or more of such cases, the Company shall give
5
<PAGE>
written notice and publish the same in the manner set forth in Section 3.05, of
the date on which (i) the books of the Company shall close or a record shall be
taken for such dividend, distribution, or subscription rights, or (ii) such
reorganization, reclassification, consolidation, merger, sale, dissolution,
liquidation, or winding up shall take place, as the case may be. Such notice
shall also specify the date as of which the holders of Common Stock of record
shall participate in such dividend, distribution, or subscription rights, or
shall be entitled to exchange their Common Stock for securities or other
property deliverable upon such reorganization, reclassification, consolidation,
merger, sale, dissolution, liquidation, or winding up, as the case may be. Such
notice shall be given and published at least 20 days prior to the action in
question and not less than 20 days prior to the record date or the date on which
the Company's transfer books are closed in respect thereto. Failure to give or
publish such notice, or any defect therein, shall not affect the legality or
validity of any of the matters set forth in the foregoing clauses (a) to (d),
both inclusive.
Section 3.07. Limitation on fractions. Anything in Section 3.01 or 3.02 to
-----------------------
the contrary notwithstanding, upon exercise of the Warrants cumulative
adjustments in the number of shares issuable on exercise of Warrants shall be
made only to the nearest multiple of one-tenth of a share, i.e., fractions of
less than five-hundredths of a share shall be disregarded and fractions of five-
hundredths of a share, or more, shall be treated as being one-tenth of a share.
Section 3.08. Form of Warrant. The form of Warrant need not be changed
---------------
because of any change pursuant to this Article, and Warrants issued after such
change may state the same Warrant Price and the same number of shares as is
stated in the Warrants initially issued pursuant to this agreement. However, the
Company may at any time in its sole discretion (which shall be conclusive) make
any change in the form of Warrant that the Company may deem appropriate and that
does not affect the substance thereof; and any Warrant thereafter issued or
countersigned, whether in exchange or substitution for an outstanding Warrant or
otherwise, may be in the form as so changed.
6
<PAGE>
Article IV
Other Provisions Relating to Rights of Bearers of Warrants
Section 4.01. No rights as shareholder conferred by Warrants. A Warrant
----------------------------------------------
does not entitle the bearer thereof to any of the rights of a shareholder of the
Company.
Section 4.02. Lost, stolen, mutilated, or destroyed Warrants. If any
----------------------------------------------
Warrant is lost, stolen, mutilated, or destroyed, the Company and the Warrant
Agent may, on such terms as to indemnify or otherwise as they may in their
discretion impose (which shall, in the case of a mutilated Warrant, include the
surrender thereof), issue a new Warrant of like denomination, tenor, and date as
the Warrant so lost, stolen, mutilated, or destroyed. Any such new Warrant shall
constitute an original contractual obligation of the Company, whether or not the
allegedly lost, stolen, mutilated, or destroyed Warrant shall be at any time
enforceable by anyone.
Section 4.03. Reservation of Common Stock. The Company shall at all times
---------------------------
reserve and keep available a number of its authorized but unissued shares of
Common Stock that will be sufficient to permit the exercise in full of all
outstanding Warrants.
Article V
Transfer and Exchange of Warrants
Section 5.01. Negotiability and ownership of Warrants. Warrants issued
---------------------------------------
hereunder shall be transferable of record only by the Warrant Agent.
Section 5.02. Exchange of Warrants. After countersignature by the Warrant
--------------------
Agent in accordance with the provisions of this agreement, one or more Warrants
may be surrendered to the Warrant Agent for exchange and, upon cancellation
thereof, the Warrant Agent shall countersign and deliver in exchange therefor
one or more new Warrants, as requested by the bearer of the canceled Warrant or
Warrants, for the same aggregate number of shares as were evidenced by the
Warrant or Warrants so canceled.
Article VI
Concerning the Warrant Agent and Other Matters
Section 6.01. Payment of taxes. The Company will from time to time promptly
----------------
pay all taxes and charges that may be imposed upon the Company or the Warrant
Agent in respect of the issuance or delivery of shares of Common Stock upon the
exercise of Warrants,
7
<PAGE>
but the Company shall not be obligated to pay any transfer taxes in respect of
the Warrants or such shares.
Section 6.02. Resignation, consolidation, or merger of Warrant Agent.
------------------------------------------------------
(a) The Warrant Agent, or any successor to it hereafter appointed, may
resign its duties and be discharged from all further duties and liabilities
hereunder after giving one month's notice in writing to the Company, except that
such shorter notice may be given as the Company shall, in writing, accept as
sufficient. If the office of the Warrant Agent becomes vacant by resignation or
incapacity to act or otherwise, the Company shall appoint in writing a successor
Warrant Agent in place of the Warrant Agent. If the Company shall fail to make
such appointment within a period of 30 days after it has been notified in
writing of such resignation or incapacity by the resigning or incapacitated
Warrant Agent or by the bearer of a Warrant (who shall, with such notice, submit
his Warrant for inspection by the Company), then the bearer of any Warrant may
apply to any court of competent jurisdiction for the appointment of a successor
Warrant Agent. Any successor Warrant Agent, whether appointed by the Company or
by such a court, shall be a corporation organized and doing business under the
laws of the United States of America or of the States of Texas or New York (or
if any other state of the United States so long as such corporation is
authorized to do business as a banking institution in either the States of New
York or Texas) in good standing and having its principal office in such state,
and authorized under such laws to exercise corporate trust powers and subject to
supervision or examination by federal or state authority and having a combined
capital and surplus of not less than $25,000,000. The combined capital and
surplus of any such successor Warrant Agent shall be deemed to be the combined
capital and surplus as set forth in the most recent report of its condition
published prior to its appointment, provided that such reports are published at
least annually pursuant to law or to the requirements of a federal or state
supervising or examining authority. After appointment, any successor Warrant
Agent shall be vested with all the authority, powers, rights, immunities,
duties, and obligations of its predecessor Warrant Agent with like effect as if
originally named as Warrant Agent hereunder, without any further act or deed;
but if for any reason it becomes necessary or appropriate, the predecessor
Warrant Agent shall execute and deliver, at the expense of the Company, an
instrument transferring to such successor Warrant Agent all the authority,
powers, and rights of such predecessor Warrant Agent hereunder; and upon request
of any successor Warrant Agent the Company shall make, execute, acknowledge, and
deliver any and all instruments in writing for more fully and effectually
vesting in and confirming to such successor Warrant Agent all such authority,
powers, rights, immunities, duties, and obligations. Not later than the
effective date of any such appointment the Company
8
<PAGE>
shall give notice thereof to the predecessor Warrant Agent and each transfer
agent for the Common Stock, and shall forthwith publish a copy of such notice
once in an Authorized Newspaper. Failure to give or publish such notice, or any
defect therein, shall not affect the validity of the appointment of the
successor Warrant Agent. The Warrant Agent may be changed by a majority vote of
the holders of a majority of the outstanding Warrants, to a Warrant Agent
acceptable to the Company.
(b) Any corporation into which the Warrant Agent may be, merged or with
which it may be consolidated or any corporation resulting from any merger or
consolidation to which the Warrant Agent shall be a party shall be the successor
Warrant Agent under this agreement without any further act.
Section 6.03. Fees and expenses of Warrant Agent. The Company agrees:
----------------------------------
(a) that it will pay the Warrant Agent reasonable remuneration for its
services as such Warrant Agent hereunder and will reimburse the Warrant Agent
upon demand for all out of pocket expenditures that the Warrant Agent may
reasonably incur in the execution of its duties hereunder; and
(b) that it will perform, execute, acknowledge, and deliver or cause to be
performed, executed, acknowledged, and delivered all such further and other
acts, instruments, and assurances as may reasonably be required by the Warrant
Agent for the carrying out or performing of the provisions of this agreement.
(c) to indemnify and hold harmless the Warrant Agent against any loss,
liability or expense (including reasonable attorney's fees) incurred without
gross negligence, willful misconduct or bad faith on the part of the Warrant
Agent arising out of or in connection with the acceptance or administration of
its duties under the Warrant Agreement, including the costs and expenses of
defending against any such claim.
Section 6.04. Additional provisions.
---------------------
(a) The Warrant Agent may consult with legal counsel (who may be legal
counsel for the Company), and the opinion of such counsel shall be full and
complete authorization and protection to the Warrant Agent as to any action
taken or omitted by it in good faith and in accordance with such opinion. The
Warrant Agent may execute any of the powers hereof and perform the duties
required of it hereunder by or through attorneys, agents, receivers or employees
and shall be entitled to advice of counsel concerning all matters of agency and
its duty hereunder.
(b) Whenever in the performance of its duties under this
9
<PAGE>
agreement the Warrant Agent shall deem it necessary or desirable that any fact
or matter be proved or established by the Company prior to taking or suffering
any action hereunder, such fact or matter (unless other evidence in respect
thereof be herein specifically prescribed) may be deemed to be conclusively
roved and established by a statement signed by the President or a Vice President
or the Treasurer or the Controller or the Secretary of the Company and delivered
to the Warrant Agent; and such statement shall be full warrant to the Warrant
Agent for any action taken or suffered in good faith by it under the provisions
of this agreement in reliance upon such statement; but in its discretion the
Warrant Agent may in lieu thereof accept other evidence of such fact or matter
or may require such further or additional evidence as to it may seem reasonable.
(c) The Warrant Agent shall be liable hereunder only for its own negligence
or willful misconduct.
(d) The Warrant Agent shall not be liable for or by reason of any of the
statements of fact or recitals contained in this agreement or in the Warrants
(except its countersignature thereof) or be required to verify the same, but all
such statements and recitals are and shall be deemed to have been made by the
Company only.
(e) The Warrant Agent shall not be under any responsibility in respect of
the validity of this agreement or the execution and delivery hereof or in
respect of the validity or execution of any Warrant (except its countersignature
thereof); nor shall it be responsible for any breach by the Company of any
covenant or condition contained in this agreement or in any Warrant; nor shall
it be responsible for the making of any adjustments required under the
provisions of Article III or responsible for the manner, method, or amount of
any such adjustment or the ascertaining of the existence of facts that would
require any such adjustment; nor shall it by any act hereunder be deemed to make
any representation or warranty as to the authorization or reservation of any
shares of Common Stock to be issued pursuant to this agreement or any Warrant or
as to whether any shares of Common Stock will when issued be validly issued and
fully paid and nonassessable.
Section 6.05. Acceptance of agency.
--------------------
(a) The Warrant Agent hereby accepts the agency established by this
agreement and agrees to perform the same upon the terms and conditions herein
set forth and, among other things, shall account promptly to the Company with
respect to Warrants exercised and concurrently pay to the Company all moneys
received by the Warrant Agent for the purchase of shares of the Company's stock
through the exercise of Warrants.
10
<PAGE>
(b) The Warrant Agent shall not be required to give any bond or surety in
respect of the execution of such agency, powers, duties or otherwise.
Section 6.06. Modification of agreement. The Warrant Agent may, without the
-------------------------
consent or concurrence of the bearers of the Warrants, by supplemental agreement
or otherwise concur with the Company in making any changes or corrections in
this agreement that it shall have been advised by counsel (who may be counsel
for the Company) are required to cure any ambiguity or to correct any defective
or inconsistent provision or clerical omission or mistake or manifest error
herein contained.
Section 6.07. Right to inspect. At any reasonable time, the Warrant Agent,
----------------
the Company and their respective duly authorized representatives shall have the
right to fully inspect any and all books, papers and records of the Company
pertaining to the Warrants and to make memoranda therefrom.
Section 6.08. Obligation to take action. The permissive authority of the
-------------------------
Warrant Agent to act pursuant to this agreement shall not be construed as a duty
to exercise such authority.
Section 6.09. Reliance on documents.
---------------------
(a) The Warrant Agent shall incur no liability in acting or proceeding in
good faith upon any resolution, telegram, request, consent, waiver, certificate,
statement, affidavit, voucher, bond, requisition or other paper or document
prepared and furnished pursuant to any of the Warrants that it in good faith
believes to be genuine.
(b) The Warrant Agent may accept and rely upon such materials as conclusive
evidence of the truth and accuracy of such statements and shall not be required
to investigate any matters contained in any such documents.
(c) The Warrant Agent is not bound to recognize any Person as the holder of
any Warrant or to take any action at his request unless such Warrant is
deposited with the Warrant Agent or evidence satisfactory to the Warrant Agent
of the ownership of such Warrant is furnished to the Warrant Agent.
(d) No provision of this agreement shall require the warrant Agent to
expend or risk its own funds or otherwise incur financial liability in the
performance of its duties hereunder or in the exercise of any of its rights or
powers if it has reasonable grounds For believing that repayment of such funds
or adequate indemnity against such risk or liability is not reasonably assured
to it.
11
<PAGE>
Section 6.10. Successors. All the covenants and provisions of this
----------
agreement by or for the benefit of the Company or the Warrant Agent shall bind
and inure to the benefit of their respective successors and assigns hereunder.
Section 6.11. Notices and demands to Company and Warrant Agent. Any notice
------------------------------------------------
or demand authorized by this agreement to be given or made by the Warrant Agent
or by the bearer of any Warrant to or on the Company shall be sufficiently given
or made if sent by mail first-class or registered, postage prepaid, addressed
(until another address is filed in writing by the Company with the Warrant
Agent), as follows:
Amerac Energy Corporation
1201 Louisiana, Suite 3350,
Houston, TX 77002
Any notice or demand authorized by this agreement to be given or made by the
bearer of any Warrant or by the Company to the Warrant Agent shall be
sufficiently given or made if sent by mail first-class or registered, postage
prepaid, addressed (until another address is filed in writing by the Warrant
Agent with the Company), as follows:
Petroleum Financial Inc.
306 W. 7/th/ Street, Suite 1025
Fort Worth, TX 76102
Section 6.12. Applicable law. The validity, interpretation, and performance
--------------
of this agreement and of the Warrants shall be governed by the law of the State
of Texas.
Section 6.13. Persons having rights under this agreement. Nothing in this
------------------------------------------
agreement expressed and nothing that may be implied from any of the provisions
hereof is intended, or shall be construed, to confer upon, or give to, any
person or corporation other than the parties hereto and the bearers of the
Warrants any right, remedy, or claim under or by reason of this agreement or of
any covenant, condition, stipulation, promise, or agreement hereof, and all
covenants, conditions, stipulations, promises, and agreements in this agreement
contained shall be for the sole and exclusive benefit of the parties hereto and
their successors and of the bearers of the Warrants.
Section 6.14. Examination of agreement. A copy of this agreement shall be
------------------------
available at all reasonable times at the corporate trust office of the Warrant
Agent in the City of Fort Worth, State of Texas, for inspection by the bearer of
any Warrant. The Warrant Agent may require any such bearer to submit his Warrant
for inspection by it.
Section 6.15. Effect of headings. The Article and Section headings herein
------------------
are for convenience only and are not part of this agreement and shall not affect
the interpretation thereof.
12
<PAGE>
In witness whereof this agreement has been duly executed by the parties
hereto under their respective corporate seals as of the day and year first above
written.
ATTEST: AMERAC ENERGY CORPORATION
By:
- -------------------------- ---------------------------------
ATTEST: PETROLEUM FINANCIAL INC.
By:
- -------------------------- ---------------------------------
13
<PAGE>
EXHIBIT 1
(Form of Warrant]
Warrant to Purchase _______
Shares of Common Stock
Amerac Energy Corporation
Warrant to Purchase Common Stock
Void After November 18, 1999
This certifies that, ______________________________ hereinafter called the
holder hereof, is entitled to purchase, at any time on or before November 18,
1999,_____ shares of Common Stock, par value $.05 per share, of Amerac Energy
Corporation, a Delaware corporation, hereinafter called the Company, as such
stock is constituted at the date of this warrant, at the Warrant Price of $.384
per share, but such number of shares and the Warrant Price per share may be
adjusted from time to time upon the occurrence of certain events as provided in
the Warrant Agreement hereinafter referred to, by surrendering this Warrant,
with the subscription form on the reverse side hereof duly executed, at the
office of the Warrant Agent, whose address will be supplied by Petroleum
Finanical Inc., and by paying in lawful money of the United States, the then
current Warrant Price as to which this Warrant is exercised, but only subject to
the conditions set forth herein and in the Warrant Resolution.
Upon exercise of this Warrant, for only a portion of the full shares
represented hereby, there shall be countersigned and issued to or upon the order
of the holder hereof a new Warrant in respect of the shares of Common Stock as
to which this Warrant shall not have been exercised.
This Warrant may be exchanged either separately or in combination with one
or more other countersigned Warrants for one or more new countersigned Warrants
for the same aggregate number of shares of Common Stock represented by the
Warrant or Warrants exchanged.
No fractional shares will be issued upon the exercise of rights to purchase
hereunder but a cash adjustment in respect thereof will be made by the Company
as provided in the hereinafter referred to Warrant Agreement.
This Warrant is issued under and in accordance with the Warrant Agreement
dated as of November 18, 1996, between the Company any and the Warrant Agent and
is subject to the terms and provisions contained in such Warrant Agreement, to
all of which terms and provisions the holder of this Warrant consents by
<PAGE>
acceptance hereof.
This Warrant is issued subject to the condition, and every holder hereof by
accepting the same agrees with every subsequent holder hereof and with the
Company, that delivery hereof by any person in possession of the same, however
such possession may have been acquired, if properly assigned in blank, or if
properly assigned to a specified person, by delivery hereof to such person,
shall vest title hereof and all rights hereunder in the transferee to the same
extent and for all purposes as would delivery under like circumstances of any
negotiable instrument; and that the Company may treat the record holder hereof
for the time being, or when presented properly assigned to a specified person,
he person to whom assigned, or, when presented properly assigned n blank, the
bearer hereof, as the absolute owner hereof for all purposes and shall not be
affected by any notice to the contrary.
This Warrant does not entitle any holder hereof to any of the rights of a
stockholder of the Company.
Dated as of ____________, 1996.
AMERAC ENERGY CORPORATION
BY:
---------------------------------
President
COUNTERSIGNED:
PETROLEUM FINANCIAL INC.
WARRANT AGENT
BY:
-------------------------------
Exercisable Only if Countersigned by the Warrant Agent.
<PAGE>
EXHIBIT 4(i).10
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement, dated as of the 18th day of
November,1996 (this "Agreement"), is by and among Amerac Energy Corporation, a
Delaware corporation (the "Issuer"), and Delaware Charter Guarantee & Trust
Company FBO: David S. Nagelberg, IRA (collectively the "Holders" and
individually a "Holder").
WHEREAS, as the Holders are this date accepting from the issuer Amerac
Common Stock, par value $.05 per share ("Stock") and a warrant or warrants (the
"Warrants") to purchase Stock, pursuant to a private offering and, Issuer agreed
to enter into this Agreement; and
WHEREAS, the Stock would require a legend restricting the
transferability, Issuer has agreed to duly execute and deliver this Agreement;
and
WHEREAS, as a condition to its acceptance of Stock and Warrants, each
Holder is requiring the Issuer to enter in this Agreement relating to the
registration of shares of Stock and Stock which may be issued upon exercise of a
Warrant;
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. Securities Subject
(a) Definitions.
As used herein, the following terms have the indicated meanings,
unless the context otherwise requires:
"Act" means the Securities Act of 1933, as amended.
"Commission" means the Securities and Exchange Commission.
"Registrable Securities" means the Stock and the Stock issuable upon
exercise of any Warrant, and any securities issued as a distribution with
respect thereto or in exchange therefor.
"Selling Holder" means a Holder who is selling Registrable Securities
pursuant to a registration statement.
(b) Registrable Securities. Any Registrable Security will cease to be
a Registrable Security when (i) a registration statement covering such
Registrable Security has been declared effective by the Commission and it has
been disposed of pursuant to such effective
<PAGE>
registration statement, (ii) it is distributed to the public pursuant to Rule
144 (or any similar or successor rule or provision then in force) under the Act,
or (iii) it may be otherwise transferred without restriction under Rule 144(k)
(or any similar successor rule or provision then in force.
2. Shelf Registration.
(a) At any time after January 16, 1997 and before the date three
years after January 16, 1997, one or more of Holders of Registrable Securities
holding an aggregate of a majority of the Registrable Securities may request in
writing that the Issuer file a "shelf" registration statement on an appropriate
form pursuant to Rule 415 (or any successor provision that may be adopted by the
Commission) under the Act covering the registration of all, or any portion in
excess of 50%, of the Registrable Securities (the "Shelf Registration"). Within
five business days of receipt of such request, the Issuer shall give notice of
such request to all of the remaining Holders of Registrable Securities of its
receipt of such request from such Holder or Holders. Upon the written request of
any such Holder delivered to the Issuer within 10 days after receipt from the
Issuer of such notification (the "Determination Date"), the Issuer will use its
best efforts to cause such of the Registrable Securities as may be requested by
any such Holder (including the Holder or Holders of Registrable Securities
giving the initial request to register hereunder) to be registered under the Act
in accordance with the terms of this Section 2.
(b) Issuer agrees to use its best efforts to file with the Commission
within 30 days of the Determination Date the Shelf Registration, have the Shelf
Registration declared effective as soon as practicable after the filing thereof
and to keep the Shelf Registration continuously effective until three years
after the date of this Agreement or until there are no more Registrable
Securities, whichever shall occur first. Issuer further agrees to supplement or
amend the Shelf Registration, (i) if required by the Act or (ii) to update
information with respect to the Holders or the plan of distribution if requested
by the Holders of a majority of the Registrable Securities, and Issuer agrees to
furnish to the Holders copies of any such supplement or amendment promptly after
its being filed with the Commission. Issuer will make available to its
securityholders (i) as soon as reasonably practicable, from time to time, for
three years, statements of operations covering each successive three-month
period, commencing on the first day of the fiscal quarter next succeeding the
effective date of such Shelf Registration and (ii) as soon as reasonably
practicable after 12 months have elapsed from such date, a statement of
operations covering a period of 12 months, which earnings statements shall
satisfy the provisions of Section 11(a) of the Act.
(c) The Holders of a majority of the Registrable Securities, in their
sole discretion, shall determine whether to proceed with, withdraw from or
terminate the Shelf
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Registration. If the Shelf Registration is withdrawn or terminated pursuant to
the foregoing clause and the Holders pay all Registration Expenses (as defined
below) incurred by Issuer in connection with the terminated or withdrawn
registration statement, such registration statement shall not constitute the
Shelf Registration pursuant to this Section 2.
3. Piggy-Back Registration
(a) If at any time beginning on the date hereof and ending three
years after such date the Issuer proposes to file a registration statement under
the Act with respect to any offering of any securities of Issuer (other than a
registration statement on Form S-4 or S-8 (or any substitute form for comparable
purposes that may be adopted by the Commission) or a registration statement
filed in connection with an exchange offer or an offering of securities solely
to Issuer's existing securityholders), then Issuer shall in each such case give
written notice of such proposed filing to the Holders of Registrable Securities
as soon as practicable (but in no event less than 10 days before the anticipated
filing date), and such notice shall offer such Holders the opportunity to
register such number of shares of Registrable Securities for sale pursuant to
such offering as each such Holder may request.
(b) Issuer shall use its best efforts to cause the managing
underwriter or underwriters of a proposed underwritten offering to permit the
Registrable Securities requested to be included in the registration statement
for such offering to be included on the same terms and conditions as any similar
securities of Issuer or of any other selling securityholders included therein.
Notwithstanding the foregoing, if the managing underwriter or underwriters of
such offering determines that because of the size of the offering which the
Holders of such Registrable Securities, the Issuer, and such other persons
intend to make, the success of the offering of the Issuer's securities could
reasonably be expected to be materially and adversely affected by inclusion of
the Registrable Securities requested to be included, then the managing
underwriters shall provide written notice of such determination to the Holders
of the Registrable Securities, and the amount of securities to be offered for
the accounts of Holders shall be reduced pro rata among the Holders to the
extent necessary to reduce the total amount of securities to be included in such
offering to the amount recommended by such managing underwriter or underwriters;
provided that if securities are being offered for the account of other persons
or entities other than Issuer, then the proportion by which the amount of
securities intended to be offered by Holders is reduced shall not exceed the
proportion by which the amount of securities intended to be offered by such
other persons or entities other than Issuer is reduced. Issuer will bear all
Registration Expenses in connection with a piggy-back registration.
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<PAGE>
(c) As a condition to a Holder's participation in any underwriting
with respect to Issuer pursuant to this Section 3, the Holder shall be required
to enter into customary agreements (including an underwriting agreement in
customary form) and take such other actions as are reasonably required by the
underwriters in order to include the Registrable Securities for sale pursuant to
such underwritten offering.
4. Holdback Agreements
(a) Restrictions on Public Sale Holder of Registrable Securities. To
the extent not inconsistent with applicable law, each Holder whose securities
are included in a registration statement pursuant to Section 3 agrees not to
effect any public sale or distribution of the issue being registered or a
similar security of Issuer, or any securities convertible into or exchangeable
or exercisable for such securities, including a sale pursuant to Rule 144 under
the Act, during the fourteen (14) days prior to, and during the ninety-day
period beginning on, the effective date of such registration statement (except,
in each case, as part of such registration), if and to the extent requested by
the managing underwriter or underwriters.
(b) Postponement of Sale under Shelf Registration Statement. Each
Holder agrees not to effect any public sale or distribution pursuant to any
Shelf Registration pursuant to this Agreement at any time that Issuer shall have
advised the Holders in writing that the sale by such Holders pursuant to such
Shelf Registration could reasonably be expected to (i) adversely affect, or
require the premature disclosure of any proposed acquisition, disposition or
other transaction involving Issuer or (ii) materially and adversely affect any
proposed underwritten public offering of Stock if the managing underwriter
thereof shall have advised the Holders that any such sales could reasonably be
expected to jeopardize the success of the offering; provided, however, in each
such case Issuer may not restrict any such sales unless at least five days prior
written notice is provided to each Holder and provided further Issuer may not
restrict sales by Holders (x) for a total of more than 90 days during any one-
year period or (y) for more than 60 consecutive days after the date of the
prospectus for any such underwritten public offering.
5. Registration Procedures
Whenever Registrable Securities are required to be registered pursuant
to Section 3 hereof, Issuer will use its best efforts to effect the registration
and the sale of such Registrable Securities in accordance with the intended
method of disposition thereof as quickly as practicable, and in connection with
any such request and with the Shelf Registration, Issuer will, as expeditiously
as possible:
(a) (i) prior to filing a registration statement or prospectus or any
amendments or supplements thereto, furnish to one counsel selected by the
Holders of a majority of the Registr-
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able Securities covered by such registration statement copies of all such
documents proposed to be filed, which documents will be subject to the review of
such counsel, (ii) as soon as reasonably possible, furnish to each Selling
Holder, prior to filing a registration statement, copies of such registration
statement as proposed to be filed, and thereafter furnish to such Selling Holder
such number of copies of such registration statement, each amendment and
supplement thereto (in each case including all exhibits thereto), the prospectus
included in such registration statement (including each preliminary prospectus)
and such other documents as such Selling Holder may reasonably request in order
to facilitate the disposition of the Registrable Securities owned by such
Selling Holder, and (iii) after the filing of the registration statement,
promptly notify each Selling Holder of Registrable Securities covered by such
registration statement of any stop order issued or threatened by the Commission
and take all reasonable actions required to prevent the entry of such stop order
or to remove it if entered;
(b) prepare and file with the Commission such amendments and post-
effective amendments to the registration statement as may be necessary to keep
the registration statement effective for (i) a period of not less than three
years in the case of a registration statement on Forms S-1 or S-2, or (ii) an
indefinite period in the case of a registration statement on Form S-3 (or such
shorter period which will terminate when all Registrable Securities covered by
such registration statement have been sold or withdrawn, but not prior to the
expiration of the 25-day period referred to in Section 4(3) of the Act and Rule
174 thereunder, if applicable); cause the prospectus to be supplemented by any
required prospectus supplement, and as so supplemented to be filed pursuant to
Rule 424 under the Act; and comply with the provisions of the Act applicable to
it with regard to the disposition of all securities covered by such registration
statement during the applicable period in accordance with the intended methods
of disposition by the sellers thereof set forth in such registration statement
or supplement to the prospectus;
(c) if requested by the managing underwriter or underwriters or any
Holder of Registrable Securities covered by the registration statement, promptly
incorporate in a prospectus supplement or post-effective amendment such
information as the managing underwriter or underwriters or such holder, as the
case may be, reasonably requested to be included therein, including, without
limitation, information with respect to the number of Registrable Securities
being sold by such holder to an underwriter or underwriters, the purchase price
being paid therefor by such underwriter or underwriters and with respect to any
other terms of the underwritten offering of the Registrable Securities to be
sold in such offering, and promptly make all required filings of such prospectus
supplement or post-effective amendment;
(d) enter into such customary agreements (including an underwritten
agreement in customary form with provisions as may be reasonably required by the
managing underwriter retained by the holder of Registrable Securities) and take
all such other actions as the holders of a majority of the Registrable
Securities being sold or the managing underwriter or underwriters retained by
holders participating in an underwritten public offering, if any, reasonably
request in order to expedite or facilitate the disposition of such Registrable
Securities in each case to the same extent as if all the securities then being
offered were for the account of the Company;
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(e) use its best efforts to register or qualify such Registrable
Securities under such other securities or blue sky laws of such jurisdictions as
any Selling Holder reasonably requests and do any and all other acts and things
which may be reasonably necessary or advisable to enable such Selling Holder to
consummate the disposition in such jurisdictions of the Registrable Securities
owned by such Selling Holder; provided that Issuer will not be required to (i)
qualify generally to do business in any jurisdiction where it would not
otherwise be required to qualify but for this paragraph (b), (ii) subject itself
to taxation or qualification in any such jurisdiction or (iii) consent to
general service of process in any such jurisdiction;
(f) notify each Selling Holder of such Registrable Securities, at any
time when a prospectus relating thereto is required to be delivered under the
Act, of the occurrence of an event requiring the preparation of a supplement or
amendment to such prospectus so that, as thereafter delivered to the purchasers
of such Registrable Securities, such prospectus will not contain an untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading and
promptly make available to each Selling Holder any such supplement or amendment;
(g) enter into customary agreements (including an underwriting
agreement in customary form) and take such other actions as are reasonably
required in order to expedite or facilitate the disposition of such Registrable
Securities;
(h) make available for inspection on a confidential basis by any
Selling Holder of such Registrable Securities, any underwriter participating in
any disposition pursuant to such registration statement, and any attorney,
accountant or other professional retained by any such Selling Holder or
underwriter (collectively, the "Inspectors"), all financial and other records,
pertinent corporate documents and properties of Issuer and its subsidiaries
(collectively, the "Records") as shall be reasonably necessary to enable them to
exercise their due diligence responsibility, and cause Issuer's and its
subsidiaries' officers, directors and employees to supply all information
reasonably requested by any such Inspector in connection with such registration
statement;
(i) in the event such sale is pursuant to an underwritten offering,
use its best efforts to obtain a comfort letter or comfort letters from Issuer's
independent public accountants in customary form and covering such matters of
the type customarily covered by comfort letters as the Selling Holders of a
majority in aggregate principal amount or number of shares, as the case may be,
of the Registrable Securities being sold or the managing underwriter reasonably
request and an opinion of outside counsel to Issuer covering such matters as are
customarily covered by such opinions;
(j) otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission, and make available to its
securityholders, as soon as reasonably practicable, an earnings statement
covering a period of 12 months, beginning within three months after the
effective date of the registration statement, which earnings statement shall
satisfy the provisions of Section 11(a) of the Act; and
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<PAGE>
(k) use its best efforts to cause all such Registrable Securities to
be listed on each securities exchange on which the Common Stock of Issuer is
then listed.
Issuer may require each Selling Holder of Registrable Securities as to
which any registration is being effected to furnish to Issuer such information
regarding the distribution of such Registrable Securities as Issuer may from
time to time reasonably request in writing and such other information as may be
legally required in connection with such registration.
Each Selling Holder agrees that, upon receipt of any notice from
Issuer of the happening of any event of the kind described in Section 5(c)
hereof, such Selling Holder will forthwith discontinue disposition of
Registrable Securities pursuant to the registration statement covering such
Registrable Securities until such Selling Holder's receipt of the copies of the
supplemented or amended prospectus contemplated by Section 5(c) hereof, and, if
so directed by Issuer, such Selling Holder will deliver to Issuer (at Issuer's
expense) all copies, other than permanent file copies, of the prospectus
covering such Registrable Securities current at the time of receipt of such
notice. In the event Issuer shall give any such notice, Issuer shall extend the
period during which such registration statement shall be maintained effective
(including the period referred to in Section 2(b) hereof) by the number of days
during the period from and including the date of the giving of such notice
pursuant to Section 5(c) hereof to and including the date when each Selling
Holder of Registrable Securities covered by such registration statement shall
have received the copies of the supplemented or amended prospectus contemplated
by Section 5(c) hereof.
6. Registration Expenses
All expenses incident to Issuer's performance of or compliance with
this Agreement, including without limitation all registration and filing fees,
fees and expenses of compliance with securities or blue sky laws (including
reasonable fees and disbursements of counsel in connection with blue sky
qualifications of the Registrable Securities), printing expenses, messenger and
delivery expenses, the fees and expenses incurred in connection with the listing
of the securities to be registered on any securities exchanges and fees and
disbursements of counsel for Issuer and its independent certified public
accountants (including the expenses of any special audit or comfort letters
required by or incident to such performance), securities acts liability
insurance (if Issuer elects to obtain such insurance) and the reasonable fees
and expenses of any special experts retained by Issuer in connection with such
registration, fees and expenses of other persons retained by Issuer (all such
expenses being herein called "Registration Expenses"), will be borne by Issuer.
Registration Expenses shall not include the fees and expenses of any counsel for
the Holders, any underwriting discounts, commissions, or similar charges
attributable to the sale of Registrable Securities or any other expenses of the
Holders, all of which shall be paid by the Holders.
7. Indemnification; Contribution
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(a) Indemnification by Issuer. Issuer agrees to indemnify and hold
harmless each Selling Holder, its officers, directors, partners and agents and
each person, if any, who controls such Selling Holder within the meaning of
Section 15 of the Act or Section 20 of the Securities Exchange Act of 1934, as
amended, from and against any and all losses, claims, damages (whether in
contract, tort or otherwise), liabilities and expenses (including reasonable
costs of investigation) whatsoever (as incurred or suffered) arising out of or
based upon any untrue statement or alleged untrue statement of a material fact
contained in any registration statement or prospectus relating to the
Registrable Securities or in any amendment or supplement thereto or in any
preliminary prospectus, or arising out of or based upon any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as such
losses, claims, damages, liabilities or expenses arise out of, or are based
upon, any such untrue statement or omission or allegation thereof based upon
information furnished in writing to Issuer by such Selling Holder or on such
Selling Holder's behalf expressly for use therein. Issuer also agrees to
indemnify any underwriters of the Registrable Securities, their officers,
partners and directors and each person who controls such underwriters on
substantially the same basis as that of the indemnification of the Selling
Holders provided in this Section 7 or such other indemnification customarily
obtained by underwriters at the time of offering.
(b) Conduct of Indemnification Proceedings. If any action or
proceeding (including any governmental investigation) shall be brought or
asserted against any Selling Holder (or its officers, directors, partners or
agents) or any person controlling any such Selling Holder in respect of which
indemnity may be sought from Issuer, Issuer shall, at its expense, assume the
defense thereof, including the employment of counsel reasonably satisfactory to
such Selling Holder. Such Selling Holder or any controlling person of such
Selling Holder shall have the right to employ separate counsel in any such
action and to participate in the defense thereof, but the fees and expenses of
such counsel shall be at the expense of such Selling Holder or such controlling
person unless (i) Issuer has agreed to pay such fees and expenses or (ii) the
named parties to any such action or proceeding (including any impleaded parties)
include both such Selling Holder or such controlling person and Issuer, and such
Selling Holder or such controlling person shall have been advised by counsel
that there may be one or more legal defenses available to such Selling Holder or
such controlling person which are different from or additional to those
available to Issuer (in which case, if such Selling Holder or such controlling
person notifies Issuer in writing that it elects to employ separate counsel at
the expense of Issuer, Issuer shall not have the right to assume the defense of
such action or proceeding on behalf of such Selling Holder or such controlling
person; it being understood, however, that Issuer shall not, in connection with
any one such action or proceeding or separate but substantially similar or
related actions or proceedings in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the fees and expenses of
more than one separate firm of attorneys (together with appropriate local
counsel) at any time for all the Selling Holders and such controlling persons,
which firm shall be designated in writing by a majority of the Selling Holders).
Issuer shall not be liable for any settlement of any such action or proceeding
effected without Issuer's written consent, but if settled with its written
consent, or if there be a final judgment no longer subject to appeal for the
plaintiff in any such action or proceeding, Issuer agrees to indemnify and hold
harmless such Selling
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Holder and such controlling person from and against any loss or liability (to
the extent stated above) by reason of such settlement or judgment.
(c) Indemnification by Holders of Registrable Securities. Each
Selling Holder agrees, severally but not jointly, to indemnify and hold harmless
Issuer, its directors and officers and each person, if any, who controls Issuer
within the meaning of either Section 15 of the Act or Section 20 of the
Securities Exchange Act of 1934, as amended, to the same extent as the foregoing
indemnity from Issuer to such Selling Holder, but only with respect to
information furnished in writing by such Selling Holder or on such Selling
Holder's behalf expressly for use in any registration statement or prospectus
relating to the Registrable Securities, or any amendment or supplement thereto,
or any preliminary prospectus. In case any action or proceeding shall be
brought against Issuer or its directors or officers, or any such controlling
person, in respect of which indemnity may be sought against such Selling Holder,
such Selling Holder shall have the rights and duties given to Issuer, and Issuer
or its directors or officers or such controlling person shall have the rights
and duties given to such Selling Holder, by the preceding paragraph. Each
Selling Holder also agrees to indemnify and hold harmless underwriters of the
Registrable Securities, their officers and directors and each person who
controls such underwriters on substantially the same basis as that of the
indemnification of Issuer provided in this Section 7.
(d) Contribution. If the indemnification provided for in this Section
7 is unavailable to Issuer, the Selling Holders or the underwriters in respect
of any losses, claims, damages, liabilities or judgments referred to herein,
then each such indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages, liabilities and judgments (i) as
between Issuer and the Selling Holders on the one hand and the underwriters on
the other, in such proportion as is appropriate to reflect the relative benefits
received by Issuer and the Selling Holders on the one hand and the underwriters
on the other from the offering of the Registrable Securities, or if such
allocation is not permitted by applicable law, in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of Issuer and the Selling Holders on the one hand and of the underwriters
on the other in connection with the statements or omissions which resulted in
such losses, claims, damages, liabilities or judgments, as well as any other
relevant equitable considerations and (ii) as between Issuer, on the one hand,
and each Selling Holder on the other, in such proportion as is appropriate to
reflect the relative fault of Issuer and of each Selling Holder in connection
with such statements or omissions, as well as any other relevant equitable
considerations. The relative benefits received by Issuer and the Selling Holders
on the one hand and the underwriters on the other shall be deemed to be in the
same proportion as the total proceeds from the offering (net of underwriting
discounts and commissions but before deducting expenses) received by Issuer and
the Selling Holders bear to the total underwriting discounts and commissions
received by the underwriters, in each case as set forth in the table on the
cover page of the prospectus. The relative fault of Issuer and the Selling
Holders on the one hand and of the underwriters on the other shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by
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Issuer and the Selling Holders or by the underwriters. The relative fault of
Issuer on the one hand and of each Selling Holder on the other shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by such party, and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
Issuer and the Selling Holders agree that it would not be just and
equitable if contribution pursuant to this Section 7(d) were determined by pro
rata allocation (even if the underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities, or judgments referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7(d), no underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Registrable Securities underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages which
such underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission, and no Selling Holder
shall be required to contribute any amount in excess of the amount by which the
total price at which the Registrable Securities of such Selling Holder were
offered to the public exceeds the amount of any damages which such Selling
Holder has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. Each Selling Holder's obligation to contribute is
several in the proportion that the proceeds of the offering received by such
Selling Holder bears to the total proceeds of the offering, and not joint.
(e) Limitation of Liability. In no event shall any Selling Holder be
liable under this Section 7 or otherwise in respect of any offering for amounts
in excess of the net proceeds received by such Selling Holder from the sale of
Registrable Securities in such offering.
8. Participation in Underwritten Registrations
No person may participate in any underwritten registration hereunder
unless such person (a) agrees to sell such person's securities on the basis
provided in any underwriting arrangements approved by the persons entitled
hereunder to approve such arrangements and (b) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents reasonably required under the terms of such underwriting
arrangements and this Agreement.
9. Rule 144.
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Issuer covenants that it will file any reports required to be filed by
it under the Act and the Securities Exchange Act of 1934, as amended, and that
it will take such further action as any Holder may reasonably request, all to
the extent required from time to time to (i) maintain its eligibility to use
Form S-3 under the Act to register the Registrable Securities and (ii) enable
Holders to sell Registrable Securities without registration under the Act within
the limitation of the exemptions provided by (a) Rule 144 under the Act, as such
Rule may be amended from time to time, or (b) any similar rule or regulation
hereafter adopted by the Commission. Upon the request of any Holder, Issuer
will deliver to such Holder a written statement as to whether it has complied
with such requirements.
10. Transfer of Registration Rights
The registration rights provided to the Holders of the Registrable
Securities under Sections 2 and 3 hereof may be transferred in whole or in part
to any other person in connection with a transfer of all or any portion of
Registrable Securities that complies with the Act and any applicable state
securities or blue sky laws. Any such transferee of Registrable Securities who
is also a transferee of the registration rights provided under Sections 2 and 3
hereof shall be a Holder of Registrable Securities within the meaning of this
Agreement and shall have the rights as such hereunder.
11. Miscellaneous
(a) Binding Effect. Unless otherwise provided herein, the provisions
of this Agreement shall be binding upon and accrue to the benefit of the parties
hereto and their respective heirs, legal representatives, transferees,
successors and assigns.
(b) Amendment. This Agreement may be amended or terminated only by a
written instrument signed by Issuer and the holders of a majority of the
Registrable Securities.
(c) Applicable Law. The internal laws of the State of Texas shall
govern the interpretation, validity and performance of the terms of this
Agreement.
(d) Notices. All notices and other communications hereunder shall be
in writing and shall be deemed given when delivered personally or when received
if sent by registered or certified mail, return receipt requested, or by
facsimile transmission to the parties at the following addresses (or at such
other address as a party may specify by like notice):
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(i) If to Holders:
--------------
Delaware Charter Guarantee & Trust Company
FBO: David S. Nagelberg
662 Juniper Place
Franklin Lakes, NJ 07417
Telephone No.: 201-848-0180
Facsimile No.:
(ii) If to Amerac Energy Corporation:
-------------------------------
Amerac Energy Corporation
700 Louisiana, Suite 3350
Houston, Texas 77002-5630
Attention: Mr. Jeffrey B. Robinson
Telephone No.: (713) 308-5250
Facsimile No.: (713) 308-5285
(e) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original and all of which
together shall be deemed to be one instrument.
(f) Severability. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid, void
or unenforceable, the remainder of the terms, provisions, covenants, and
restrictions of this Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the date first above written.
AMERAC ENERGY CORPORATION
By:
-------------------------------------
Jeffrey L. Stevens
Senior Vice President
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-------------------------------------------
Delaware Charter Guarantee & Trust Company
FBO: David S. Nagelberg
13
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[LETTERHEAD OF CANTEY & HANGER, L.L.P. APPEARS HERE]
EXHIBIT 5
April 4, 1997
Amerac Energy Corporation
700 Louisiana, Suite 3330
Houston, Texas 77002
Gentlemen:
We have acted as counsel to Amerac Energy Corporation, a Delaware
corporation (the "Company"), in connection with the registration of 1,831,634
shares of its common stock, $.05 par value per share (the "Shares"), pursuant to
a Registration Statement on Form S-3 under the Securities Act of 1933, as
amended (the "Registration Statement"). This opinion is being rendered pursuant
to Item 601 of Regulation S-B of the rules and regulations of the Securities and
Exchange Commission and is to be filed as an exhibit to the Registration
Statement. Unless otherwise defined herein, the definitions of terms used in
this opinion shall be the same as those in the Registration Statement.
Our opinions are limited in all respects to the substantive law of the
State of Texas, the federal law of the United States and the Delaware General
Corporation Law, and we assume no responsibility as to the applicability
thereto, or the effect thereon, of the laws of any other jurisdiction. We are
licensed to practice law only in the State of Texas and do not hold ourselves
out to be experts on the laws of any jurisdiction other than the State of Texas
and the United States of America. We are not members of the bar of Delaware and
our knowledge of its general corporation law is derived solely from a reading of
the Delaware General Corporation Law without any consideration of any judicial
or administrative interpretations thereof.
BASIS OF OPINION
In rendering the opinions hereinafter expressed, we have, with your
consent, relied only upon our examination of the following documents and
certificates, and we have made no independent verification of the factual
matters set forth in such documents or certificates:
(a) Charter documents of the Company and all amendments thereto,
certified by the Secretary of State of Delaware on February 18, 1997;
<PAGE>
Amerac Energy Corporation
April 4, 1997
Page 2
(b) The Bylaws of the Company, certified to be true and correct by the
Secretary of the Company;
(c) A Certificate from the Secretary of State of Delaware indicating that
the Company is in existence as of February 18, 1997;
(d) Copies of resolutions adopted by the Board of Directors of the Company
and of the Company's shareholders, where applicable, certified by the
Company's Secretary, relating to issuance of shares of the Company's
common stock subsequent to January 1, 1994; and
(e) A Certificate of the Secretary of the Company, certifying as to
certain factual matters, including the number of issued and
outstanding and reserved shares of the Company's common stock.
ASSUMPTIONS AND QUALIFICATIONS
For purposes of this opinion, we have assumed the genuineness of all
signatures on all documents, the authenticity of all documents submitted to us
as originals, the conformity to the originals of all documents submitted to us
as copies, and the correctness and accuracy of all facts set forth in all
certificates and reports identified in this opinion.
Further, we have assumed, without investigation, that any certificate,
telegram or other document on which we have relied that was given or dated
earlier than the date of this letter continued to remain accurate, insofar as
relevant to such opinion, from such earlier date through and including the date
of this letter.
With respect to the authorization, issuance and delivery of the Shares, we
have assumed, without investigation, that:
(a) Except for the corporation law of the State of Delaware, at the time
thereof and at all times subsequent thereto, such actions did not or will not
violate, result in a breach of, or conflict with any rule, regulation, order,
judgment or decree, in each case whether then or subsequently in effect;
(b) At the time thereof and at all times subsequent thereto, the persons
authorizing such actions for the Company did not violate any fiduciary or other
duty owed by them;
<PAGE>
Amerac Energy Corporation
April 4, 1997
Page 3
(c) No event has taken place subsequent to such actions or will take place
which would cause such actions not to comply with any law, rule, regulation,
order, judgment, decree or duty, or which would permit the Company at any time
thereafter to cancel, rescind or otherwise avoid such actions;
(d) There was no misrepresentation, omission or deceit by the Company or
any other person or entity in connection with such actions;
(e) At the time thereof and at all times subsequent thereto, such actions
did not, do not now, and will not violate, result in a breach of, conflict with,
or (with or without the giving of notice or the passage of time or both) entitle
any party to terminate or call a default under any term of any contract,
agreement, instrument, lease, license, arrangement or understanding to which the
Company is or becomes a party or to which it or any of its properties, assets or
security holders are or will be subject; and
(f) As to the shares underlying the Warrants, such shares will be issued
in accordance with the acts, proceedings or documents relating thereto, will be
executed and authenticated in the manner set forth therein, and will be issued,
sold and delivered for consideration which is otherwise in conformity with the
acts, proceedings and documents referred to above.
OPINION
Based upon and subject to the foregoing, it is our opinion that the Shares
issued, or to be issued, have been duly authorized and are, or when issued, will
be, legally issued, fully paid and non-assessable.
This opinion is limited to the matters stated herein and no opinion is
implied or may be inferred beyond the matters expressly stated. We hereby
consent to the filing of this opinion as an exhibit to the Registration
Statement.
CANTEY & HANGER, L.L.P.
By: /s/ DEAN A. TETIRICK, PARTNER
-------------------------------------
Dean A. Tetirick, Partner
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
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We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of our report dated
March 25, 1997 appearing on page F-2 of Amerac Energy Corporation's Annual
Report on Form 10-KSB for the year ended December 31, 1996. We also consent to
the reference to us under the heading "Experts" in such Prospectus.
March 29, 1997
Fort Worth, Texas
